|
Exhibit 4.2
Execution
Version
MAGELLAN MIDSTREAM
PARTNERS, L.P.
as Issuer
and
U.S. BANK NATIONAL
ASSOCIATION
as Trustee
$250,000,000
6.400% SENIOR NOTES DUE
2018
SECOND SUPPLEMENTAL
INDENTURE
Dated as of July 14,
2008
TABLE OF
CONTENTS
|
|
|
|
|
| ARTICLE I |
| ESTABLISHMENT OF NEW SERIES |
|
Section 1.01
|
|
Establishment of New Series |
|
1 |
|
| ARTICLE II |
| DEFINITIONS AND INCORPORATION BY
REFERENCE |
|
|
|
|
Section 2.01
|
|
Definitions |
|
2 |
|
| ARTICLE III |
| THE NOTES |
|
|
|
|
Section 3.01
|
|
Form |
|
4 |
|
Section 3.02
|
|
Issuance
of Additional Notes |
|
4 |
|
Section 3.03
|
|
Transfer
of Notes |
|
4 |
|
Section 3.04
|
|
Restrictive Legend |
|
5 |
|
| ARTICLE IV |
| REDEMPTION |
|
|
|
|
Section 4.01
|
|
Optional
Redemption |
|
5 |
|
Section 4.02
|
|
Mandatory
Redemption |
|
5 |
|
| ARTICLE V |
| COVENANT SUPPLEMENTS AND
AMENDMENTS |
|
|
|
|
Section 5.01
|
|
Covenants
of the Partnership |
|
5 |
|
| ARTICLE VI |
| ADDITIONAL EVENT OF DEFAULTS |
|
|
|
|
Section 6.01
|
|
Events of
Default |
|
8 |
|
| ARTICLE VII |
| MISCELLANEOUS |
|
|
|
|
Section 7.01
|
|
Integral
Part |
|
9 |
|
Section 7.02
|
|
Adoption,
Ratification and Confirmation |
|
9 |
|
Section 7.03
|
|
Counterparts |
|
9 |
|
Section 7.04
|
|
Governing
Law |
|
9 |
|
Section 7.05
|
|
Trustee
Makes No Representation |
|
9 |
|
|
|
|
EXHIBIT A:
|
|
Form of
Note |
|
|
|
|
|
|
EXHIBIT B:
|
|
Form of
Supplemental Indenture |
|
|
- i -
SECOND SUPPLEMENTAL INDENTURE
dated as of July 14, 2008 (this “ Second
Supplemental Indenture ”) between Magellan Midstream
Partners, L.P., a Delaware limited partnership (the “
Partnership ” or the “
Issuer ”), and U.S. Bank National Association,
a national banking association, as trustee (the “
Trustee ”).
W I T N E S S E T
H:
WHEREAS, the Issuer has
heretofore entered into an Indenture, dated as of April 19,
2007 (the “ Original Indenture ”), with
U.S. Bank National Association, as trustee;
WHEREAS, the Original
Indenture, as supplemented pursuant to this Second Supplemental
Indenture, is herein called the “ Indenture
”;
WHEREAS, the Issuer proposes
to create under the Indenture a new series of Debt
Securities;
WHEREAS, the Issuer having
heretofore entered into the First Supplemental Indenture dated as
of April 19, 2007, in order to create an initial series of
Debt Securities, the 6.400% Senior Notes due 2037;
WHEREAS, additional Debt
Securities of other series hereafter established, except as may be
limited in the Original Indenture as at the time supplemented and
modified, may be issued from time to time pursuant to the Original
Indenture as at the time supplemented and modified by a
supplemental indenture; and
WHEREAS, all conditions
necessary to authorize the execution and delivery of this Second
Supplemental Indenture and to make it a valid and binding
obligation of the Issuer have been done or performed;
NOW, THEREFORE, in
consideration of the agreements and obligations set forth herein
and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
ESTABLISHMENT OF NEW
SERIES
Section 1.01
Establishment of New Series . (a) There is
hereby established a new series of Notes to be issued under the
Indenture, to be designated as the Issuer’s 6.400% Senior
Notes due 2018 (the “ Notes
”).
(b) There are to be
authenticated and delivered $250,000,000 principal amount of Notes
on the Issue Date, and from time to time thereafter there may be
authenticated and delivered an unlimited principal amount of
Additional Notes.
(c) The Notes shall be issued
initially in the form of one or more Global Securities in
substantially the form set out in Exhibit A hereto. The Depositary
with respect to the Notes shall be The Depository Trust
Company.
- 1 -
(d) Initially, there shall be
no Subsidiary Guarantors. Each Note shall be dated the date of
authentication thereof and shall bear interest as provided in
paragraph 1 of the form of Note in Exhibit A hereto.
(e) If and to the extent that
the provisions of the Original Indenture are duplicative of, or in
contradiction with, the provisions of this Second Supplemental
Indenture, the provisions of this Second Supplemental Indenture
shall govern.
ARTICLE II
DEFINITIONS AND
INCORPORATION BY REFERENCE
Section 2.01
Definitions . All capitalized terms used herein and
not otherwise defined below shall have the meanings ascribed
thereto in the Original Indenture. The following are additional
definitions used in this Second Supplemental Indenture:
“ Additional
Notes ” has the meaning assigned to it in
Section 3.02 hereof.
“ Consolidated
Net Tangible Assets ” means, at any date of
determination, the total amount of assets after deducting therefrom
(1) all current liabilities (excluding (A) any current
liabilities that by their terms are extendible or renewable at the
option of the obligor thereon to a time more than 12 months after
the time as of which the amount thereof is being computed, and
(B) current maturities of long-term debt), and (2) the
amount (net of any applicable reserves) of all goodwill, trade
names, trademarks, patents and other like intangible assets, all as
set forth on the consolidated balance sheet of the Partnership and
its consolidated subsidiaries for the Partnership’s most
recently completed fiscal quarter, prepared in accordance with
GAAP.
“ Debt
” means any obligation created or assumed by any Person for
the repayment of money borrowed, any purchase money obligation
created or assumed by such Person and any guarantee of the
foregoing.
“ Funded
Debt ” means all Debt maturing one year or more from
the date of the creation thereof, all Debt directly or indirectly
renewable or extendible, at the option of the debtor, by its terms
or by the terms of any instrument or agreement relating thereto, to
a date one year or more from the date of the creation thereof, and
all Debt under a revolving credit or similar agreement obligating
the lender or lenders to extend credit over a period of one year or
more.
“ Issue
Date ” means the date on which the Notes are
initially issued.
“ Lien
” means, as to any Person, any mortgage, lien, pledge,
security interest or other encumbrance in or on, or adverse
interest or title of any vendor, lessor, lender or other secured
party to or of such Person under conditional sale or other title
retention agreement or capital lease with respect to, any property
or asset of such Person.
“ Notes
” has the meaning assigned to it in Section 1.01(a)
hereof.
“ Permitted
Liens ” means (1) Liens upon rights-of-way for
pipeline purposes; (2) any statutory or governmental Lien,
mechanics’, materialmen’s, carriers’ or similar
Lien incurred in the ordinary course of business which is not yet
due or which is being contested in good faith by
- 2 -
appropriate proceedings and any
undetermined Lien which is incidental to construction; (3) the
right reserved to, or vested in, any municipality or public
authority by the terms of any right, power, franchise, grant,
license, permit or by any provision of law, to purchase or
recapture or to designate a purchaser of, any property or assets;
(4) Liens for taxes and assessments which are (A) for the
then current year, (B) not at the time delinquent, or
(C) delinquent but the validity of which is being contested at
the time by the Partnership or any Restricted Subsidiary in good
faith; (5) Liens arising under, or to secure performance of,
leases, other than capital leases; (6) any Lien upon, or
deposits of, any assets in favor of any surety company or clerk of
court for the purpose of obtaining indemnity or stay of judicial
proceedings; (7) any Lien upon property or assets acquired or
sold by the Partnership or any Restricted Subsidiary resulting from
the exercise of any rights arising out of defaults on receivables;
(8) any Lien incurred in the ordinary course of business in
connection with workmen’s compensation, unemployment
insurance, temporary disability, social security, retiree health or
similar laws or regulations or to secure obligations imposed by
statute or governmental regulations; (9) any Lien in favor of
the United States of America or any state thereof, or any other
country, or any political subdivision of any of the foregoing, to
secure partial, progress, advance or other payments pursuant to any
contract or statute, or any Lien securing industrial development,
pollution control or similar revenue bonds; or (10) any
easements, exceptions or reservations in any property or assets of
the Partnership or any Restricted Subsidiary granted or reserved
for the purpose of pipelines, roads, the removal of oil, gas, coal
or other minerals, and other like purposes, or for the joint or
common use of real property, facilities and equipment, which are
incidental to, and do not materially interfere with, the ordinary
conduct of its business or the business of the Partnership and its
Subsidiaries, taken as a whole.
“ Person
” means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock
company, trust, other entity, unincorporated organization or
government or other agency or political subdivision
thereof.
“ Principal
Property ” means any pipeline, terminal or terminal
facility property or asset owned or leased by the Partnership or
any Subsidiary, including any related property or asset employed in
the transportation (including vehicles that generate transportation
revenues), distribution, terminalling, gathering, treating,
processing, marketing or storage of crude oil or refined petroleum
products, natural gas, natural gas liquids, fuel additives,
petrochemicals or ammonia, except, in the case of, (1) any
property or asset consisting of inventories, furniture, office
fixtures and equipment (including data processing equipment),
vehicles and equipment used on, or useful with, vehicles (but
excluding vehicles that generate transportation revenues as
provided above), and (2) any such property or asset, plant or
terminal which, in the opinion of the Board of Directors, is not
material in relation to the activities of the Partnership and its
Subsidiaries, taken as a whole.
“ Ratings
Affirmation ” means, with respect to any particular
action or proposed action, each of Standard & Poor’s
Rating Services and Moody’s Investors Service, Inc. or, if
either or both of such ratings agencies do not then rate the Notes,
such other nationally recognized statistical rating organization
(as defined in the rules and regulations of the SEC) then having
issued long-term debt ratings for the Notes, affirms that such
long-term debt ratings will not be lowered as a result of the
taking of such action or proposed action.
- 3 -
“ Restricted
Subsidiary ” means any Subsidiary of the Partnership
that owns or leases, directly or indirectly through ownership of or
an ownership interest in another Subsidiary, any Principal
Property.
“ Sale-Leaseback
Transaction ” means the sale or transfer by the
Partnership or any Restricted Subsidiary of any Principal Property
to a Person (other than the Partnership or a Restricted Subsidiary)
and the taking back by the Partnership or any Restricted
Subsidiary, as the case may be, of a lease of such Principal
Property.
“
Subsidiary ” means, with respect to any
Person,
(1) any other Person of which
more than 50% of the total voting power of capital interests
(without regard to any contingency to vote in the election of
directors, managers, trustees, or equivalent persons), at the time
of such determination, is owned or controlled, directly or
indirectly, by such Person or one or more of the Subsidiaries of
such Person;
(2) in the case of a
partnership, any Person of which more than 50% of the
partners’ capital interests (considering all partners’
capital interests as a single class), at the time of such
determination, is owned or controlled, directly or indirectly, by
such Person or one or more of the Subsidiaries of such Person;
or
(3) any other Person in which
such Person or one or more of the Subsidiaries of such Person have
the power to control, by contract or otherwise, the board of
directors, managers, trustees or equivalent governing body of, or
otherwise control, such other Person.
ARTICLE III
THE NOTES
Section 3.01
Form . The Notes shall be issued in the form of one
or more Global Securities, and the Notes and Trustee’s
certificate of authentication shall be substantially in the form of
Exhibit A hereto, the terms of which are incorporated in and made a
part of this Second Supplemental Indenture, and the Issuer and the
Trustee, by their execution and delivery of this Second
Supplemental Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Section 3.02
Issuance of Additional Notes . The Issuer may, from
time to time, issue an unlimited amount of additional Notes
(“ Additional Notes ”) under the
Indenture, which shall be issued in the same form as the Notes
issued on the Issue Date and which shall have identical terms as
the Notes issued on the Issue Date other than with respect to the
issue date, issue price and first payment of interest. The Notes
issued on the Issue Date shall be limited in aggregate principal
amount to $250,000,000. The Notes issued on the Issue Date and any
Additional Notes subsequently issued shall be treated as a single
series for purposes of giving of notices, consents, waivers,
amendments and taking any other action permitted under the
Indenture and for purposes of interest accrual and
redemptions.
Section 3.03
Transfer of Notes . When Notes are presented to the
Registrar with the request to register the transfer of such Notes
or exchange such Notes for an equal principal amount of Notes of
other authorized denominations, the Registrar shall register the
transfer or make the exchange in accordance with Article II of the
Original Indenture.
- 4 -
Section 3.04
Restrictive Legend . Each security certificate
evidencing the Global Securities shall bear a legend substantially
in the form set forth in Section 2.15(a) of the Original
Indenture.
ARTICLE IV
REDEMPTION
Section 4.01 Optional
Redemption.
(a) At its option, the Issuer
may choose to redeem all or any portion of the Notes, at once or
from time to time.
(b) To redeem the Notes, the
Issuer must pay a redemption price in an amount determined in
accordance with the provisions of paragraph number 5 of the form of
Note in Exhibit A hereto, plus accrued and unpaid interest, if any,
to the Redemption Date (subject to the right of Holders on the
relevant record date to receive interest due on the relevant
interest payment date).
(c) Any redemption pursuant
to this Section 4.01 shall be made pursuant to the provisions
of Sections 3.01 through 3.03 of the Original Indenture. The actual
redemption price, calculated as provided in paragraph number 5 of
the form of Note in Exhibit A hereto, shall be certified in writing
to the Issuer and the Trustee by the Independent Investment Banker
(as defined in such paragraph 5) no later than two Business Days
prior to each Redemption Date.
Section 4.02
Mandatory Redemption . The Issuer shall not be
required to make mandatory redemption or sinking fund payments with
respect to the Notes and shall have no obligation to repurchase any
Notes at the option of the Holders.
ARTICLE V
COVENANT SUPPLEMENTS AND
AMENDMENTS
Section 5.01
Covenants of the Partnership .
(a) Article IV of the
Original Indenture is hereby supplemented, but only in relation to
the Notes, by the addition of the following new Sections at the end
of Article IV:
“Section 4.12.
Subsidiary Guarantees . If any Subsidiary of the Partnership
that is not then a Subsidiary Guarantor becomes a guarantor or
co-obligor of any Funded Debt of the Partnership, in either case
after the Issue Date, then the Partnership shall cause such
Subsidiary to promptly execute and deliver a supplemental
Indenture, substantially in the form of Exhibit B hereto, providing
for the Guarantee of the payment of the Notes pursuant to Article
XIV hereof.
- 5 -
Section 4.13.
Limitations on Liens . The Partnership will not, nor will it
permit any Subsidiary to, create, assume, incur or suffer to exist
any Lien upon any Principal Property or upon any capital stock of
any Restricted Subsidiary, whether owned or leased on the date of
this Indenture or thereafter acquired, to secure any Debt of the
Partnership or any other Person (other than the Debt Securities
issued hereunder), without in any such case making effective
provision whereby all of the Debt Securities Outstanding hereunder
shall be secured equally and ratably with, or prior to, such Debt
so long as such Debt shall be so secured. This restriction shall
not apply to or prevent the creation or existence of:
(a) any Lien on any property
or assets of the Partnership or any Restricted Subsidiary in
existence on the Issue Date or created pursuant to an
“after-acquired property” clause or similar term in
existence on the Issue Date in any mortgage, pledge agreement,
security agreement or other similar instrument applicable to the
Partnership or any Restricted Subsidiary and in existence on the
Issue Date;
(b) any Lien on any property
or assets created at the time of acquisition of such property or
assets by the Partnership or any Restricted Subsidiary or within
one year after such time to secure all or a portion of the purchase
price for such property or assets or Debt incurred to finance such
purchase price, whether such Debt was incurred prior to, at the
time of or within one year of such acquisition;
(c) any Lien on any property
or assets existing thereon at the time of the acquisition thereof
by the Partnership or any Restricted Subsidiary (whether or not the
obligations secured thereby are assumed by the Partnership or any
Restricted Subsidiary), provided that such Lien only encumbers the
property or assets so acquired;
(d) any Lien on any property
or assets of a Person existing thereon at the time such Person
becomes a Restricted Subsidiary by acquisition, merger or
otherwise, provided that such Lien is not incurred in anticipation
of such Person becoming a Restricted Subsidiary;
(e) any Lien on any property
or assets to secure all or part of the cost of construction,
development, repair or improvements thereon or to secure Debt
incurred prior to, at the time of, or within one year after
completion of such construction, development, repair or
improvements or the commencement of full operations thereof
(whichever is later), to provide funds for any such
purpose;
(f) any Lien in favor of the
Partnership or any Restricted Subsidiary;
(g) any Lien created or
assumed by the Partnership or any Restricted Subsidiary in
connection with the issuance of Debt the interest on which is
excludable from gross income of the holder of such Debt pursuant to
the Internal Revenue Code of 1986, as amended, or any successor
statute, for the purpose of financing, in whole or in part, the
acquisition or construction of property or assets to be used by the
Partnership or any Subsidiary;
(h) Permitted
Liens;
- 6 -
(i) any Lien on any
additions, improvements, replacements, repairs, fixtures,
appurtenances or component parts thereof, attaching to or required
to be attached to property or assets pursuant to the terms of any
mortgage, pledge agreement, security agreement or other similar
instrument, creating a Lien upon such property or assets permitted
by Clauses (a) through (h), inclusive, of this Section;
or
(j) any extension, renewal,
refinancing, refunding or replacement (or successive extensions,
renewals, refinancings, refundings or replacements) of any Lien, in
whole or in part, that is referred to in Clauses (a) through
(i), inclusive, of this Section, or of any Debt secured thereby;
provided, however, that the principal amount of Debt secured
thereby shall not exceed the greater of (1) the principal
amount of Debt so secured at the time of such extension, renewal,
refinancing, refunding or replacement (plus the aggregate amount of
premiums, other payments, costs and expenses required to be paid or
incurred in connection with such extension, renewal, refinancing,
refunding or replacement) and (2) the maximum committed
principal amount of Debt so secured at such time; provided further,
however, that such extension, renewal, refinancing, refunding or
replacement shall be limited to all or a part of the property or
assets (including improvements, alterations and repairs on such
property or assets) subject to the Lien so extended, renewed,
refinanced, refunded or replaced (plus improvements, alterations
and repairs on such property or assets).
Notwithstanding the foregoing
provisions of this Section, the Partnership may, and may permit any
Subsidiary to, create, assume, incur or suffer to exist any Lien
upon any Principal Property or capital stock of a Restricted
Subsidiary to secure Debt of the Partnership or any other Person
(other than the Debt Securities) that is not excepted by Clauses
(a) through (j), inclusive, of this Section without securing
the Debt Securities issued hereunder, provided that the aggregate
principal amount of all Debt then outstanding secured by such Lien
and all other Liens not excepted by Clauses (a) through (j),
inclusive, of this Section, together with all net sale proceeds
from Sale-Leaseback Transactions (excluding Sale-Leaseback
Transactions permitted by Clauses (a) through (d), inclusive,
of Section 4.14), does not exceed at any one time 15% of
Consolidated Net Tangible Assets.
Section 4.14.
Restriction of Sale-Leaseback Transaction . The Partnership
will not, nor will it permit any Restricted Subsidiary to, engage
in a Sale-Leaseback Transaction, unless:
(a) the Sale-Leaseback
Transaction occurs within one year from the date of acquisition of
the Principal Property subject thereto or the date of the
completion of construction or commencement of full operations on
such Principal Property, whichever is later;
(b) the Sale-Leaseback
Transaction involves a lease for a period, including renewals, of
not more than three years;
(c) the Partnership or such
Restricted Subsidiary would be entitled under Section 4.13 to
i
|