First Supplement and Amendment to Lease Agreement (Series 2010A), dated June 1, 2020, among the Parish of St. James, State of Louisiana, NuStar Logistics, L.P., NuStar Energy L.P. and NuStar Pipeline Operating Partnership L.P

THIS FIRST SUPPLEMENT AND AMENDMENT TO LEASE AGREEMENT is made and entered into as of June 1, 2020 (the “First Supplemental Lease Agreement”) between the PARISH OF ST. JAMES, STATE OF LOUISIANA (the “Issuer”), a political subdivision of the State of Louisiana created and existing under the Constitution and Laws of the State of Louisiana, and NUSTAR LOGISTICS, L.P., a limited partnership organized and existing under the laws of the State of Delaware (the “Company”);

WHEREAS, pursuant to an Indenture of Trust dated as of October 1, 2010 (the “Original Indenture” and, as amended and supplemented by the First Supplemental Indenture (as defined herein), the “Indenture”), by and between the Issuer and the U.S. Bank National Association, a national banking association, as trustee (the “Trustee”), the Issuer issued its Revenue Bonds (NuStar Logistics, L.P.) Series 2010A (the “Series 2010A Bonds”) in the original principal amount of $50,000,000, and currently outstanding in the amount of $43,300,000, for the purpose of financing the cost of acquiring, constructing and installing 3 tanks; piping to connect the new tanks to existing tanks, docks and third-party pipelines; a new dock; and unit train installation located at the NuStar St. James Terminal on the west bank of the Mississippi River at mile marker 159.9 in the Parish of St. James, State of Louisiana, constituting nonresidential real property to be located in the geographical limits of St. James Parish in the Gulf Opportunity Zone as provided in the Gulf Opportunity Zone Act of 2005 (the “Project”) and, pursuant to a Lease Agreement dated as of October 1, 2010 (the “Original Agreement”), by and between the Issuer and the Company, the Issuer leased the Project to the Company; and

WHEREAS, the Company has determined, pursuant to Section 2.07 of the Original Indenture, to convert the interest rate on the Series 2010A Bonds from a Weekly Period to a Long Term Period; and

WHEREAS, the Company has given the required notices of intent to convert the interest rate on the Series 2010A Bonds pursuant to Section 2.07(a) of the Original Indenture and the Trustee has given the required notices of mandatory purchase pursuant to Section 4.01(b) of the Original Indenture; and

WHEREAS, the mandatory purchase and the conversion of the interest rate on the Series 2010A Bonds will occur on June 3, 2020 (the “Conversion Date”); and

WHEREAS, Section 12.01 of the Original Indenture provides that the Original Agreement may be amended to make revisions thereto which shall be effective only upon, and in connection with, the remarketing of all of the Bonds then Outstanding; and

WHEREAS, the Trustee and the Issuer have consented to the amendment of the Original Agreement for the purpose of revising certain provisions, including but not limited to adding additional covenants of the Company and adding guarantees from NuStar Energy L.P. and NuStar Pipeline Operating Partnership L.P. (collectively, the “Guarantors”) which guarantee the payment of the Company Obligations (as defined in Exhibit A hereto); and

WHEREAS, the Original Indenture is being supplemented and amended on the date hereof; and

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration and of the mutual benefits, covenants and agreements herein expressed, the Issuer, the Company, and the Guarantors hereby agree as follows:

SECTION 1.01.      Definitions. The following terms are added as defined terms or are amendments to defined terms used in the Original Agreement:

“Agreement” means the Original Agreement, as amended by the First Supplemental Lease Agreement, and any amendments and supplements thereto.

“First Supplemental Indenture” means the First Supplement and Amendment to Indenture of Trust dated as of June 1, 2020 between the Issuer and the Trustee and attached hereto as Exhibit C.

“First Supplemental Lease Agreement” means this First Supplement and Amendment to Lease Agreement dated as of June 1, 2020 between the Issuer and the Company.

“Indenture” means the Original Indenture, as amended by the First Supplemental Indenture, and any amendments and supplements thereto.

“Original Agreement” means the Lease Agreement dated as of October 1, 2010, between the Issuer and the Company.

“Original Indenture” means the Indenture of Trust dated as of October 1, 2010, between the Issuer and the Trustee, pursuant to which the Bonds are authorized to be issued and attached hereto as Exhibit B.

SECTION 2.01.      Amendment to Section 6.08.  Section 6.08 of the Original Agreement is hereby deleted in its entirety and replaced with the following:

“Section 6.08.   [Reserved].”

SECTION 2.02.      Additional Covenants.  The following section is added to Article VI of the Original Agreement:

“Section 6.10    Additional Covenants.

The Company and the Guarantors hereby covenant and agree to comply with the provisions contained in Exhibit A hereto.”

SECTION 3.01.      Notices.  The addresses contained in Section 9.02 of the Original Agreement are hereby amended as follows:

SECTION 4.01.      Ratification and Confirmation.  Except as expressly modified by this First Supplemental Lease Agreement, the Original Agreement in all other respects is hereby ratified and confirmed and shall remain in full force and effect.

SECTION 4.02.      Representations and Warranties of the Issuer.  The representations and warranties of the Issuer and the Company set forth in the Agreement are hereby confirmed as of the date of this First Supplemental Lease Agreement.

SECTION 4.03.      Execution and Counterparts.  This First Supplemental Lease Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

SECTION 4.04.      Applicable Law.  This First Supplemental Lease Agreement is prepared and entered into with the intention that the law of the State of Louisiana shall govern its construction.

SECTION 4.05.     Interdependence with the Original Agreement.  Upon the execution of this First Supplemental Lease Agreement, the Original Agreement shall be modified in accordance herewith, and this First Supplemental Lease Agreement shall form a part of the Original Agreement for all purposes. Any default by the Company under the Original Agreement shall be deemed to be a default under this First Supplemental Lease Agreement as well, and vice versa.

SECTION 4.06.     Severability.  If any clause, paragraph or part of this First Supplemental Lease Agreement for any reason shall be finally adjudged by any court of competent jurisdiction to be unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remainder of this First Supplemental Lease Agreement but shall be confined in its operation to the clause, sentence, paragraph, or any part thereof directly involved in the controversy in which such judgment has been rendered.

SECTION 4.07.    Dating.  The dating of this First Supplemental Lease Agreement is intended as and for the convenience of identification of this First Supplemental Lease Agreement and is not intended to indicate that this First Supplemental Lease Agreement was executed and delivered on said date. This First Supplemental Lease Agreement was executed and delivered and became effective on the Conversion Date.

SECTION 4.08.      Indenture.  All references in the Agreement to the Indenture shall mean and include the First Supplemental Indenture as defined herein in Section 1.01.

SECTION 4.09.      Consent of Company.  Pursuant to Section 11.03 of the Original Indenture, the Company hereby consents to the execution and delivery of the First Supplemental Indenture.

IN WITNESS WHEREOF, the Issuer, the Company, and the Guarantors have caused this First Supplement and Amendment to Lease Agreement to be executed in their respective names and attested by their duly authorized officers and have caused their seals to be hereunto affixed, all as of the day and year first written above.

All capitalized, undefined terms used in this Exhibit A shall have the same meanings as used in Article I of the Original Agreement. In addition, for purposes of this Exhibit A, the following words and phrases shall have the following meanings:

“Affiliate Guarantor” means NuStar Pipeline Operating Partnership L.P., a Delaware limited partnership, until a successor Affiliate Guarantor shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Affiliate Guarantor” shall mean or include each Person who is then an Affiliate Guarantor hereunder.

“Attributable Indebtedness” when used with respect to any Sale-Leaseback Transaction, means, as at the time of determination, the present value, discounted at the rate set forth or implicit in the terms of the lease included in the transaction, of the total obligations of the lessee for rental payments, other than amounts required to be paid on account of property taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costs and other items that constitute payments for property rights, during the remaining term of the lease included in the Sale-Leaseback Transaction, including any period for which the lease has been extended. In the case of any lease that is terminable by the lessee upon the payment of a penalty or other termination payment, the amount shall be the lesser of the amount determined assuming termination upon the first date the lease may be terminated, in which case the amount shall also include the amount of the penalty or termination payment, but no rent shall be considered as required to be paid under the lease subsequent to the first date upon which it may be so terminated, or the amount determined assuming no termination.

“Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors or the protection of creditors.

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” have correlative meanings. For purposes of this definition, a Person shall be deemed not to Beneficially Own securities that are the subject of a stock purchase agreement, merger agreement, amalgamation agreement, arrangement agreement or similar agreement until consummation of the transactions or, as applicable, series of related transactions contemplated thereby.

“Board of Directors” means, with respect to the Company or the Parent Guarantor, the Board of Directors of the General Partner or of the Parent Guarantor’s general partner, as the case may be, or any authorized committee of such Board of Directors.

“Capital Interests” means any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, including, without limitation, with respect to partnerships, partnership interests (whether general or limited) and 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, such partnership.

“Company Obligations” means amounts payable to the Trustee under Section 4.02(a) of the Agreement and the Reserved Rights.

“Consolidated Net Tangible Assets” means, at any date of determination, the total amount of assets after deducting therefrom (a) all current liabilities, excluding (i) any current liabilities renewable or extendable at the option of the obligor to a time more than 12 months after the time as of which the amount thereof is being computed, and (ii) current maturities of long-term debt, and (b) the value, net of any applicable amortization, of all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the consolidated balance sheet of the Parent Guarantor for the its 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, and any purchase money obligation created or assumed by such Person and any guarantee of the foregoing.

“Equity Interests” means:

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Funded Debt” means all Debt maturing one year or more from the date of the creation thereof, all Debt directly or indirectly renewable or extendable, 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.

“GAAP” means generally accepted accounting principles in the United States 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 may be approved by a significant segment of the accounting profession of the United States, as in effect from time to time.

“General Partner” means the person serving as such under the Partnership Agreement, which, on the date hereof, is NuStar GP, Inc., a Delaware corporation.

“Guarantors” means, together, the Parent Guarantor and the Affiliate Guarantor.

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by Standard & Poor’s.

“Lien” means any mortgage, pledge, security interest, charge, lien or other encumbrance of any kind, whether or not filed, recorded and perfected under applicable law.

“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.

“NuStar Group” means, collectively, NuStar GP Holdings, LLC, the Parent Guarantor and each direct or indirect Subsidiary of either of them.

“Parent Guarantor” means NuStar Energy L.P., a Delaware limited partnership, until a successor Parent Guarantor shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Parent Guarantor” shall mean or include each person who is then a Parent Guarantor hereunder.

“Pari Passu Debt” means any Debt of the Company, whether outstanding on the date of this First Supplemental Lease Agreement or thereafter created, incurred or assumed, unless, in the case of any particular Debt, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Debt shall be subordinated in right of payment to the Company Obligations.

“Partnership Agreement” means the Agreement of Limited Partnership of the Company as in effect from time to time.

“Permitted Liens” means, with respect to any Person:

(12)       any Lien securing Debt of the Company or any of its Subsidiaries, all or a portion of the net proceeds of which are used, substantially concurrent with the funding thereof (and for purposes of determining such “substantial concurrence,” taking into consideration, among other things, required notices to be given to Owners of Outstanding Bonds under the Indenture in connection with such refunding, refinancing or repurchase, and the required corresponding durations thereof), to refinance, refund or repurchase all Outstanding Bonds under the Indenture, including the amount of all accrued interest thereon and reasonable fees and expenses and premium, if any, incurred by the Company or any of its Subsidiaries in connection therewith;

(13)        Liens in favor of any Person to secure obligations under the provisions of any letters of credit, bank guarantees, bonds or surety obligations required or requested by any governmental authority in connection with any contract or statute; or

(14)        any Lien upon or deposits of any assets to secure performance of bids, trade contracts or statutory obligations.

“Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, other entity, unincorporated organization or government, or any agency or political subdivision thereof.

“Rating Agency” means each of Standard & Poor’s and Moody’s, or if Standard & Poor’s or Moody’s or both shall not make a rating on the Bonds publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a resolution of the Board of Directors of the General Partner) which shall be substituted for Standard & Poor’s or Moody’s, or both, as the case may be.

“Rating Category” means:

(a)          with respect to S&P, any of the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories); and

(b)          with respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories).

“Ratings Decline” means a decrease in the rating of the Bonds by both Moody’s and S&P by one or more gradations (including gradations within Rating Categories as well as between Rating Categories). In determining whether the rating of the Bonds has decreased by one or more gradations, gradations within Rating Categories, namely + or - for S&P, and 1, 2, and 3 for Moody’s, will be taken into account; for example, in the case of S&P, a ratings decline either from BB+ to BB or BB– to B+ will constitute a decrease of one gradation.

“Sale-Leaseback Transaction” means the sale or transfer by the Company or any of its Subsidiaries of any property or assets to a Person (other than the Company or a Subsidiary of the Company) and the taking back by the Company or any Subsidiary of the Company, as the case may be, of a lease of such property or assets.

“Standard & Poor’s” or “S&P” means S&P Global Ratings, a division of S&P Global, Inc., or any successor to the rating agency business thereof.

“Subsidiary” of any Person means (i) any partnership of which more than 50% of the Capital Interests (considering all partners’ Capital Interests as a single class) is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or combination thereof, or (ii) any corporation, association or other business entity of which more than 50% of the total voting power of the Capital Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or combination thereof.

“Subsidiary Guarantor” means, as at any date, any Subsidiary that has become and then is obligated as a guarantor as provided in Section 3(d) of this Exhibit A, not having been released pursuant to Section 3(e) of this Exhibit A.

“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 vote in the election of members of the board of directors, managers, general partners or trustees of such 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) whose Equity Interest does not provide holders thereof the general voting power under ordinary circumstances to vote in the election of members of the board of directors, managers, general partners or trustees of such partnership, as applicable, the general partner interest in such partnership.

Section 2.            Unconditional Guarantees.

For value received, the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantee to the Owners and to the Trustee the due and punctual payment of the Company Obligations, when and as such Company Obligations shall become due and payable according to the terms of the Indenture and this Agreement. The guarantees by the Guarantors set forth in this Section 2 of Exhibit A are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Company Obligations and would be owed by the Company under the Agreement but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company.

Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of each Guarantor and will rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such Guarantor. Each Guarantor hereby agrees that to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Company Obligations, the Guarantees or this Agreement, the absence of any action to enforce the same, any waiver or consent by any party with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The Guarantor hereby agrees that in the event of a default in payment of the Company Obligations under this Agreement, whether at the maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Owners or, subject to Section 9.04 of the Indenture, by the Owners, on the terms and conditions set forth in the Indenture, directly against the Guarantors to enforce the Guarantees without first proceeding against the Company.

To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Section 2 of Exhibit A shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Company or such Guarantor contained in the Indenture or this Agreement, (ii) any impairment, modification, release or limitation of the liability of the Company, such Guarantor or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Company, such Guarantor, the Trustee or the Issuer of any rights or remedies under the Indenture or this Agreement or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for any of the Bonds, including all or any part of the rights of the Company or such Guarantor under the Indenture or this Agreement, (v) the extension of the time for payment by the Company or such Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Bonds or the Indenture or this Agreement or of the time for performance by the Company or such Guarantor of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Company or such Guarantor set forth in the Indenture or this Agreement, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Company or any of the Guarantors or any of their respective assets, or the disaffirmance of any of the Bonds, the Guarantees or the Indenture or this Agreement in any such proceeding, (viii) the release or discharge of the Company or such Guarantor from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of any of the Bonds, the Guarantees, the Indenture or this Agreement, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or such Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or such Guarantor.

To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or such Guarantor, and all demands and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Guarantee will not be discharged except by complete performance of the Guarantees. Each Guarantor further agrees that to the fullest extent permitted by applicable law, if at any time all or any part of any payment theretofore applied by any Person to any Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of such Guarantor, such Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.

The Guarantors shall be subrogated to all rights of the Owners, the Issuer and the Trustee against the Company in respect of any amounts paid by the Guarantors pursuant to the provisions of the Indenture and this Agreement; provided, however, that the Guarantors shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Company Obligations until all of the Bonds and the Guarantees thereof shall have been indefeasibly paid in full or discharged.

A director, officer, employee, stockholder, partner or member, as such, of the Guarantors shall not have any liability for any obligations of the Guarantors under the Indenture or this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation.

No failure to exercise and no delay in exercising, on the part of the Trustee, the Issuer or the Owners, any right, power, privilege or remedy under this Section 2 of Exhibit A and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Section 2 of Exhibit A shall limit the right of the Trustee, the Issuer or the Owners to take any action to accelerate the maturity of the Bonds pursuant to Section 9.02 of the Indenture or to pursue any rights or remedies hereunder or under applicable law.

Section 3.            Covenants.

The Company hereby covenants and agrees:

(a)          Consolidation, Merger, Conveyance, Transfer or Lease.

(1)          The Company shall not, and subject to Section 3(e) of this Exhibit A, shall not permit any Subsidiary Guarantor to, consolidate with or merge into any other Person or sell, lease or transfer its properties and assets as, or substantially as, an entirety to, any Person, unless:

(A)          (i) in the case of a merger, the Company or such Subsidiary Guarantor is the surviving entity, or (ii) the Person formed by such consolidation or into which the Company or such Subsidiary Guarantor is merged or the Person which acquires by sale or transfer, or which leases, the properties and assets of the Company or such Subsidiary Guarantor as, or substantially as, an entirety expressly assumes, by an amendment hereto, or an amendment to the applicable Subsidiary Guarantor, as, or substantially as, an entirety expressly assumes, by a supplement executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company or such Subsidiary Guarantor, as the case may be, under the Indenture or this Agreement, or the applicable Subsidiary Guarantee, as the case may be;

(B)           the surviving entity or successor Person is a Person organized and existing under the laws of the United States of America, any state thereof or the District of Columbia;

(C)           immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and

(D)          the Company has delivered to the Trustee an officers’ certificate, stating that such consolidation, merger, conveyance, sale, transfer or lease complies with this Section 3(a) of Exhibit A and Section 2.02(b) of the Agreement and that all conditions precedent herein provided for relating to such transaction have been complied with.

(2)          Upon any consolidation of the Company or any Subsidiary Guarantor with, or merger of the Company or any Subsidiary Guarantor into, any other Person or any sale, transfer or lease of the properties and assets of the Company or any Subsidiary Guarantor as, or substantially as, an entirety in accordance with Section 3(a)(1) of this Exhibit A, the successor Person formed by such consolidation or into which the Company or such Subsidiary Guarantor is merged or to which such sale, transfer or lease is made shall (and, in the case of any Subsidiary Guarantor, its Subsidiary Guarantee will provide that it shall) succeed to, and be substituted for, and may exercise every right and power of, the Company or such Subsidiary Guarantor under the Indenture and this Agreement, or the Subsidiary Guarantee of such Subsidiary Guarantor, as the case may be, with the same effect as if such successor Person had been named originally as the Company or such Subsidiary Guarantor herein or therein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under the Indenture and this Agreement and the Company Obligations or such Subsidiary Guarantee, as the case may be.

(b)          Limitations on Liens.

The Company will not, nor will it permit any of its Subsidiaries to, create, assume, incur or suffer to exist any Lien upon any property or assets, whether owned or leased on the date of this First Supplemental Lease Agreement or thereafter acquired, to secure any Debt of the Company or any other Person (other than the Company Obligations), without in any such case making effective provision whereby all of the Company Obligations 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:

(1)          Permitted Liens;

(2)          any Lien upon any property or assets of the Company or any of its Subsidiaries in existence on the date of this First Supplemental Lease Agreement or created pursuant to an “after acquired property” clause or similar term or otherwise provided for pursuant to agreements existing on the date of this First Supplemental Lease Agreement;

(3)         any Lien upon any property or assets created at the time of acquisition of such property or assets by the Company or any of its Subsidiaries or within one year after such time to secure all or a portion of the purchase price for such property or assets or Debt incurred to finance such purchase price, whether such Debt was incurred prior to, at the time of or within one year after the date of such acquisition;

(4)         any Lien upon any property or assets existing thereon at the time of the acquisition thereof by the Company or any of its Subsidiaries (regardless of whether the obligations secured thereby are assumed by the Company or any of its Subsidiaries); provided, however, that such Lien only encumbers the property or assets so acquired;

(5)          any Lien upon any property or assets of a Person existing thereon at the time such Person becomes a Subsidiary of the Company by acquisition, merger or otherwise; provided, however, that such Lien only encumbers the property or assets of such Person at the time such Person becomes a Subsidiary of the Company;

(6)          any Lien upon any property or assets to secure all or part of the cost of construction, development, repair or improvements thereon or to secure 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;

(7)          Liens imposed by law or order as a result of any proceeding before any court or regulatory body that is being contested in good faith, and Liens which secure a judgment or other court-ordered award or settlement as to which the Company or the applicable Subsidiary, as the case may be, has not exhausted its appellate rights;

(8)         any Lien upon 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 (1) through (7) above;

(9)         any extension, renewal, refinancing, refunding or replacement (or successive extensions, renewals, refinancing, refundings or replacements) of any Lien, in whole or in part, referred to in clauses (1) through (8), inclusive, of this Section 3(b) of Exhibit A; provided, however, that the principal amount of Debt secured thereby shall not exceed 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); provided, further, however, that such extension, renewal, refinancing, refunding or replacement Lien shall be limited to all or a part of the property (including improvements, alterations and repairs on such property) subject to the encumbrance so extended, renewed, refinanced, refunded or replaced (plus improvements, alterations and repairs on such property); or

(10)        any Lien resulting from the deposit of moneys or evidence of indebtedness in trust for the purpose of defeasing Debt of the Company or any Subsidiary.

Notwithstanding the foregoing provisions of this Section 3(b) of Exhibit A, the Company may, and may permit any of its Subsidiaries to, create, assume, incur or suffer to exist any Lien upon any property or assets to secure Debt of the Company or any Person (other than the Bonds) that is not excepted by clauses (1) through (10), inclusive, of this Section 3(b) of Exhibit A without securing the Bonds issued under the Indenture, provided that the aggregate principal amount of all Debt then Outstanding secured by such Lien and all similar Liens, together with all Attributable Indebtedness from Sale-Leaseback Transactions (excluding Sale-Leaseback Transactions permitted by clauses (1) through (4), inclusive, of Section 3(c) of this Exhibit A), does not exceed 10% of Consolidated Net Tangible Assets.

(c)          Restriction of Sale-Leaseback Transaction.

The Company will not, nor will it permit any of its Subsidiaries to, engage in a Sale-Leaseback Transaction, unless:

(1)         the Sale-Leaseback Transaction occurs within one year from the date of completion of the acquisition of the property or assets subject thereto or the date of the completion of construction, development or substantial repair or improvement, or commencement of full operations on such property or assets, whichever is later;

(2)          the Sale-Leaseback Transaction involves a lease for a period, including renewals, of not more than three years;

(3)          the Company or such Subsidiary would be entitled to incur Debt secured by a Lien on the property or assets subject thereto in a principal amount equal to or exceeding the Attributable Indebtedness from such Sale-Leaseback Transaction without equally and ratably securing the Bonds; or

(4)          the Company or such Subsidiary, within a one-year period after such Sale-Leaseback Transaction, applies or causes to be applied an amount not less than the Attributable Indebtedness from such Sale-Leaseback Transaction to (A) the prepayment, repayment, redemption, reduction or retirement of Pari Passu Debt of the Company, or (B) the expenditure or expenditures for property or assets used or to be used in the ordinary course of business of the Company or its Subsidiaries.

Notwithstanding the foregoing provisions of this Section 3(c) of Exhibit A, the Company may, and may permit any of its Subsidiaries to, effect any Sale-Leaseback Transaction that is not excepted by clauses (1) through (4), inclusive, of this Section 3(c) of Exhibit A; provided that the Attributable Indebtedness from such Sale-Leaseback Transaction, together with the aggregate principal amount of then outstanding Debt (other than the Bonds) secured by Liens upon any property or assets of the Company or its Subsidiaries not excepted by clauses (1) through (10), inclusive, of Section 3(b) of this Exhibit A, do not exceed 10% of the Consolidated Net Tangible Assets.

(d)          Future Subsidiary Guarantors.

The Company shall cause each Subsidiary of the Company that guarantees or becomes a co-obligor in respect of any Funded Debt of the Company (including, without limitation, following any release of such Subsidiary pursuant to Section 3(e) of this Exhibit A from any guarantee previously provided by it under this Section 3(d) of Exhibit A) to cause the Company Obligations to be equally and ratably guaranteed by such Subsidiary, but only to the extent that the Company Obligations are not already guaranteed by such Subsidiary on reasonably comparable terms and promptly execute and deliver to the Trustee an amendment to this Agreement pursuant to which such Subsidiary will guarantee payment of the Company Obligations.

(e)          Release of Guarantee.

Notwithstanding anything to the contrary in Section 3(d) of this Exhibit A, in the event that any Subsidiary that has guaranteed the Company Obligations pursuant to Section 3(d) of this Exhibit A shall no longer be a guarantor of any Funded Debt of the Company other than the Company Obligations, and so long as no Default with respect to the Company Obligations shall have occurred or be continuing, such Subsidiary, upon giving written notice to the Trustee to the foregoing effect, shall be deemed to be automatically released from all of its obligations in respect of the Company Obligations, and its guarantee thereof and this Agreement without further act or deed and such guarantee of such Subsidiary shall be terminated and of no further force or effect. Following the receipt by the Trustee of any such notice, the Company shall cause this Agreement to be amended to evidence such release and termination; provided, however, that the failure to so amend this Agreement shall not affect the validity of the release and termination of such guarantee of such Subsidiary.

Notwithstanding any other provisions of the Indenture, the Agreement or this Exhibit A, if at any time the Affiliate Guarantor does not guarantee any obligations of the Parent Guarantor or any of its Subsidiaries (including the Company) under any bank credit facility or any public debt instrument (other than pursuant to its Guarantee), then upon the Affiliate Guarantor giving written notice to the Trustee to the foregoing effect, the Affiliate Guarantor shall automatically be deemed to be released from its Guarantee and all of its obligations in respect of the Company Obligations and shall no longer be a “Guarantor” hereunder. However, if at any time after the Affiliate Guarantor is released from its Guarantee, the Affiliate Guarantor guarantees any obligations of the Parent Guarantor or any of its Subsidiaries (including the Company) under any bank credit facility or any public debt instrument, then the Affiliate Guarantor will (1) simultaneously therewith, automatically be deemed to be a “Guarantor” under the Agreement and have all obligations applicable to Guarantors under the Agreement and (2) provide a Guarantee of the Company Obligations pursuant to documentation satisfactory to the Trustee.

(f)          Change of Control.

(1)          If a Change of Control occurs, each Owner of Bonds shall have the right to require the Trustee with funds provided by the Company, who may designate a third party for this purpose (in either case, the “Company Designee”) to repurchase all or any part (which shall be in an amount equal to an Authorized Denomination under the Indenture) of that Owner’s Bonds pursuant to the offer described below (the “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a “Change of Control Payment” in cash equal to 101% of the aggregate principal amount of Bonds repurchased, plus accrued and unpaid interest thereon, if any, to, but excluding, the date of purchase (the “Change of Control Payment Date”), subject to the rights of any Owner in whose name a Bond is registered on a Record Date occurring prior to the Change of Control Payment Date to receive interest due on an Interest Payment Date that is on or prior to such Change of Control Payment Date.

(2)          Within 30 days following any Change of Control, at the written direction of the Company Designee, which shall be accompanied by a form of notice in accordance with the applicable procedures of the Securities Depository, the Trustee shall deliver, within five (5) days after receipt of such written direction from the Company Designee, the notice provided by the Company to each Owner of Bonds. The notice, which shall govern the terms of the Change of Control Offer, shall state, among other things:

(A)           that a Change of Control has occurred and a Change of Control Offer is being made as provided for herein, and that, although Owners are not required to tender their Bonds, all Bonds that are validly tendered shall be accepted for payment;

(B)           the Change of Control Payment and the Change of Control Payment Date, which will be no earlier than 10 days and no later than 60 days after the date such notice is delivered in accordance with the applicable procedures required by the Indenture;

(C)           that any Bonds accepted for payment pursuant to the Change of Control Offer (and duly paid for on the Change of Control Payment Date) shall cease to accrue interest after the Change of Control Payment Date;

(D)           that any Bonds (or portions thereof) not validly tendered shall continue to accrue interest;

(E)           that any Owner electing to have a Bond purchased pursuant to any Change of Control Offer shall be required to surrender the Bond, or transfer by book-entry transfer, to the Trustee, at the address specified in the notice at least one (1) Business Day before the Change of Control Payment Date;

(F)           that Owners shall be entitled to withdraw their election if the Trustee receives, not later than the expiration of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Owner, the principal amount of the Bond the Owner delivered for purchase and a statement that such Owner is withdrawing his election to have such Bond purchased;

(G)           the instructions and any other information necessary to enable Owners to tender their Bonds (or portions thereof) and have such Bonds (or portions thereof) purchased pursuant to the Change of Control Offer; and

(H)           whether any partial redemption of Bonds is scheduled to occur during the Change of Control Offer period.

(3)          On or before the Change of Control Payment Date, the Trustee shall accept for payment all Bonds or portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer. Promptly after such acceptance, on the Change of Control Payment Date, the Company Designee will:

(A)           deposit by 11:00 a.m., New York City time, with the Trustee an amount equal to the Change of Control Payment in respect of all Bonds or portions thereof so tendered for deposit in the Change of Control Payment Fund; and

(B)           provide the Trustee an officers’ certificate stating the aggregate principal amount of Bonds or portions thereof being purchased by the Company Designee.

(4)          On the Change of Control Payment Date, the Trustee, shall deliver to each Owner of Bonds accepted for payment the Change of Control Payment for such Bonds (or, if all the Bonds are then in global form, make such payment in accordance with the applicable procedures of the Securities Depositary), and the Issuer shall promptly issue a new Bond with a new Sub-series designated and new Interest Period, and the Trustee shall promptly authenticate and deliver in accordance with the applicable procedures of the Securities Depositary to each Owner such new Bond equal in principal amount to any unpurchased portion of the Bonds surrendered, if any; provided that each such new Bond shall be in a principal amount equal to an Authorized Denomination under the Indenture. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

(5)          The provisions described in this Section 3(f) that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether any other provisions of the Indenture are applicable, except as set forth in Section 3(g) below.

(6)          Notwithstanding the other provisions of this Section 3(f), the Company and the Trustee shall not be required to make a Change of Control Offer upon a Change of Control if (A) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Exhibit A applicable to a Change of Control Offer made by the Company and purchases all Bonds validly tendered and not withdrawn under such Change of Control Offer, (B) notice of redemption of all outstanding Bonds has been given pursuant to the Indenture, unless and until there is a default in payment of the applicable redemption price, or (C) in connection with or in contemplation of any Change of Control, the Company has made an offer to purchase (an “Alternate Offer”) any and all Bonds validly tendered at a cash price equal to or higher than the Change of Control Payment and has purchased all Bonds properly tendered in accordance with the terms of such Alternate Offer.

(7)          A Change of Control Offer or Alternate Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of the Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer or Alternate Offer.

(8)         In the event that Owners of not less than 90% of the aggregate principal amount of the outstanding Bonds have been accepted for payment pursuant to a Change of Control Offer or an Alternate Offer and the Company (or a third party making the Change of Control Offer or Alternate Offer as provided in Section 3(f)(6)) purchases all of the Bonds held by such Owners, the Company will have the right, upon not less than 10 nor more than 60 days’ notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer or Alternate Offer described above, as the case may be, to cause a mandatory tender of all of the Bonds that remain Outstanding following such purchase at a price equal to the applicable Change of Control Payment or Alternate Offer price, as applicable, plus, to the extent not included in the Change of Control Payment or Alternate Offer price, as applicable, accrued and unpaid interest thereon, if any, to, but excluding, the date of tender (such date, the “Change of Control Mandatory Purchase Date”) (subject to the right of Owners of record on the relevant Record Date to receive interest due on an Interest Payment Date that is on or prior to the Change of Control Mandatory Purchase Date).

(g)          Termination of Right to Tender Upon Change of Control.

If at any time (1) the Bonds have an Investment Grade Rating from either of the Rating Agencies, (2) no Default has occurred and is continuing under this Agreement or the Indenture and (3) the Company has delivered to the Trustee an officers’ certificate certifying to (1) and (2) of this Section 3(g) of Exhibit A (the occurrence of the events described in the foregoing clauses (1), (2) and (3) being collectively referred to as a “Covenant Termination Event”), the Company and its Subsidiaries shall no longer be subject to the provisions of Section 3(f) of this Exhibit A. However, the Company and its Subsidiaries will remain subject to all of the other provisions of this Agreement.

The Trustee shall not have any obligation to monitor the ratings of the Bonds, the occurrence or date of any Covenant Termination Event and may rely conclusively on the officers’ certificate referenced above with respect to the same. The Trustee shall not have any obligation to notify the Owners of the occurrence or date of any Covenant Termination Event, but may provide a copy of such officers’ certificate to any Owner upon request.