EXHIBIT 4.6
INDENTURE, dated as of November 21, 1997 between Xxxxx Refining &
Marketing, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx, 00000, and Marine Midland Bank, a New
York banking corporation and trust company, as Trustee (herein called the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured, senior
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Initial Notes"), to be issued in one or more series as in this Indenture
provided which, subject to certain conditions, are exchangeable for notes that
are registrable under the Securities Act (the "Exchange Notes" and together with
the Initial Notes, the "Notes" or the "Securities").
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE 1.
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DEFINITIONS AND OTHER PROVISIONS
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OF GENERAL APPLICATION
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Section 1.01. Definitions
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For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean
such accounting principles as are generally accepted and consistently
applied in the United States which are in effect on the date of this
Indenture; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"9 1/2% Notes" means the Company's 9 1/2% Senior Notes due 2004.
"10 1/2% Notes" means the Company's 10 1/2% Senior Notes due 2001.
"10 7/8 % Notes" means the 10 7/8 % Senior Notes due 2005 of Xxxxx USA.
"144A Global Note" means a global note in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of, and registered in the name of, the Depository or its
nominee that will be issued in a denomination equal to the outstanding principal
amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AOC Payment" means all payments made to AOC Limited Partnership, a limited
partnership organized under the laws of the State of Missouri, constituting
"Additional Redemption Consideration" required to be paid by Xxxxx USA pursuant
to Section 2.4 of the Stock Purchase and Redemption Agreement.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Security, the rules and procedures of
the Depository, Euroclear and Cedel that apply to such transfer or exchange.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Restricted Subsidiaries
(including a consolidation or
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merger or other sale of any such Restricted Subsidiaries with, into or to
another Person in a transaction in which such Restricted Subsidiary ceases to be
a Restricted Subsidiary, but excluding a disposition by a Restricted Subsidiary
of such Person to such Person or a Restricted Subsidiary of such Person or by
such Person to a Restricted Subsidiary of such Person) of (i) shares of Capital
Stock (other than directors' qualifying shares) or other ownership interests of
a Restricted Subsidiary of such Person, (ii) substantially all of the assets of
such Person or any of its Restricted Subsidiaries representing a division or
line of business or (iii) other assets or rights of such Person or any of its
Restricted Subsidiaries outside of the ordinary course of business, which in the
case of either clause (i), (ii) or (iii), whether in a single transaction or a
series of related transactions, result in Net Available Proceeds in excess of
$10 million; provided that (x) any transfer, conveyance, sale, lease or other
disposition of assets securing the Credit Agreement in connection with the
enforcement of the security interests therein and (y) any sale of crude oil
pursuant to the contracts governing the transactions contemplated by the Gulf
Merger Agreement and the Gulf Oil Purchase Contract shall not be deemed an Asset
Disposition hereunder.
"Asset Disposition Trigger Date" has the meaning as specified in
Section 9.16.
"Attributable Indebtedness" means the total net amount of rent required to
be paid during the remaining primary term of any particular lease under which
any person is at the time liable, discounted at the rate per annum equal to the
weighted average interest rate borne by the Notes.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 5.15 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Blackstone" means Blackstone Capital Partners III Merchant Banking Fund
L.P. and its affiliates.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and set forth in an Officers' Certificate delivered to the
Trustee.
"Blackstone Transaction" means the acquisition of 13,500,000 shares of
common stock of Xxxxx USA previously held by Trizec Xxxx Corporation and certain
of its subsidiaries.
"Borrowing Base" means, as of any date, an amount equal to the sum of (i)
95% of the accounts receivable owned by the Company and its Restricted
Subsidiaries (excluding any accounts receivable from Restricted Subsidiaries and
any accounts receivable that are more than 90 days past due) as of such date,
plus (ii) 90% of the market value of inventory owned by the Company and its
Restricted Subsidiaries as of such date, plus (iii) 100% of the cash and Cash
Equivalents owned by the Company and its Restricted Subsidiaries as of such date
that are, as of such date, held in one or more separate accounts under the
direct control of the agent bank under the Credit Agreement and that are as of
such date pledged to secure working capital borrowings under the Credit
Agreement, minus (iv) the principal amount of borrowings outstanding as of such
date under the Credit Agreement to the extent that the amount of such borrowings
exceeds
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the sum of clauses (i) and (ii) above, all of the foregoing calculated on a
consolidated basis in accordance with GAAP.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the Borough of Manhattan,
City of New York, are authorized or obligated by law, regulation or executive
order to close.
"Capital Lease" means, at the time any determination thereof is to be made,
any lease of property, real or personal or mixed, in respect of which the
present value of the minimum rental commitment would be capitalized on a balance
sheet of the lessee in accordance with GAAP.
"Capitalized Lease Obligation" of any Person means any lease of any
property (whether real, personal or mixed) by such Person as lessee which, in
conformity with GAAP, is required to be accounted for as a Capital Lease on the
balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of any association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock and (iii) in the case of a partnership, partnership interests
(whether general or limited).
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank having
capital and surplus in excess of $500 million and a Xxxxx Bank Watch Rating of
"B" or better, (iv) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (ii) and (iii)
entered into with any financial institution meeting the qualifications specified
in clause (iii) above and (v) commercial paper having the highest rating
obtainable from Xxxxx'x or S&P and, in each case, maturing within six months
after the date of acquisition.
"Cedel Bank" means Cedel Bank, SA.
"Change of Control" means any transaction the result of which is that any
Person (an "Acquiring Person") other than Blackstone, or a Person a majority of
whose voting equity is owned by Blackstone, becomes the Beneficial Owner,
directly or indirectly, of shares of stock of the Company or Xxxxx USA entitling
such Acquiring Person to exercise 50% or more of the total voting power of all
classes of stock of the Company or Xxxxx USA, as the case may be, entitled to
vote in elections of directors. The term "Beneficial Owner" shall be determined
in accordance with Rule 13d-3 under the Exchange Act.
"Change of Control Triggering Event" means the occurrence of a Change of
Control resulting in a Rating Decline.
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"Chevron Payment" means that certain contingent payment obligation of Xxxxx
USA to Chevron U.S.A. Inc. based on industry refining margins and the volume of
refined oil products produced at the Port Xxxxxx Refinery over a five-year
period, pursuant to Section 3.1(d) of the Asset Purchase Agreement, dated as of
August 18, 1994, between Xxxxx USA and Chevron U.S.A. Inc., as amended.
"Xxxxx USA" means Xxxxx USA, Inc., a Delaware corporation and the direct
parent of the Company.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument 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.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Adjusted Net Worth" of any Person means the total amount of
consolidated stockholder's equity (par value plus additional paid-in capital
(including all Capital Stock except as excluded below) plus retained earnings or
minus accumulated deficit) of such Person as reflected on the consolidated
balance sheet of such Person and its Restricted Subsidiaries for the most recent
Quarter prior to the event requiring such determination to be made, after
excluding (to the extent otherwise included therein and without duplication) the
following (the amount of such stockholder's equity and deductions therefrom to
be computed, except as noted below, in accordance with GAAP consistently
applied): (i) any amount receivable but not paid from sales of Capital Stock of
such Person or its Restricted Subsidiaries determined on a consolidated basis;
(ii) any revaluation or other write-up in book value of assets subsequent to the
date hereof (other than write-ups of oil inventory previously written down and
other than reevaluations or write-ups upon the acquisition of assets acquired in
a transaction to be accounted for by purchase accounting under GAAP); (iii)
treasury stock; (iv) an amount equal to the excess, if any, of the amount
reflected on the books and records of such Person or its Restricted Subsidiaries
for the securities of any Person which is not a Restricted Subsidiary of such
Person over the lesser of cost or market value (as determined in good faith by
the board of directors of such Person or such Restricted Subsidiary); (v)
Disqualified Capital Stock; (vi) equity securities of such Person or its
Restricted Subsidiaries which are not Disqualified Capital Stock but which are
exchangeable for or convertible into debt securities of such Person or such
Restricted Subsidiary, as the case may be, other than at the option of such
Person or such Restricted Subsidiary except to the extent that the exchange or
conversion rights in such other equity securities cannot, under any
circumstances, be exercised prior to Maturity; (vii) the cumulative foreign
currency translation
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adjustment, if any; and (viii) write-offs of non-cash items in an amount not to
exceed $80 million.
"Consolidated Net Operating Income" means, when used with reference to any
Person, for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, provided that (i) the Net Income of any Person which is
not a Subsidiary of such Person or is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid to such Person or its Restricted Subsidiaries, (ii) the Net
Income of any Unrestricted Subsidiary shall be excluded (except to the extent
distributed to the Company or one of its Subsidiaries), (iii) the Net Income of
any Person acquired in a pooling of interests transaction for any period prior
to the date of such acquisition shall be excluded, (iv) extraordinary gains and
losses and gains and losses from the sale of assets outside the ordinary course
of such Person's business shall be excluded, (v) the cumulative effect of
changes in accounting principles in the year of adoption of such changes shall
be excluded and (vi) the tax effect of any of the items described in clauses (i)
through (v) above shall be excluded.
"Consolidated Net Tangible Assets" of a Person means the consolidated total
assets of such Person and its Restricted Subsidiaries determined in accordance
with GAAP, less the sum of (i) all current liabilities and current liability
items, and (ii) all goodwill, trade names, trademarks, patents, organization
expense, unamortized debt discount and expense and other similar intangibles
properly classified as intangibles in accordance with GAAP.
"Consolidated Operating Cash Flow" means with respect to any Person,
Consolidated Net Operating Income of such Person and its Restricted Subsidiaries
without giving effect to gains and losses on securities transactions (net of
related taxes) for the period described below, increased by the sum of (i)
consolidated Fixed Charges of such Person and its Restricted Subsidiaries which
reduced Consolidated Net Operating Income for such period, (ii) consolidated
income tax expense (net of taxes relating to gains and losses on securities
transactions) of such Person and its Restricted Subsidiaries which reduced
Consolidated Net Operating Income for such period, (iii) consolidated
depreciation and amortization expense (including amortization of purchase
accounting adjustments) of such Person and its Restricted Subsidiaries and other
noncash items to the extent any of which reduced Consolidated Net Operating
Income for such period, (iv) expenses incurred in connection with the Blackstone
Transaction in an amount not to exceed $9 million, and (v) any annual management
monitoring, consulting and advisory fees and related expenses paid to Blackstone
and its affiliates in an amount not to exceed $2 million, less noncash items
which increased Consolidated Net Operating Income for such period, all as
determined for such Person and its consolidated Restricted Subsidiaries in
accordance with GAAP for the four full Quarters for which financial information
in respect thereof is available immediately prior to the Transaction Date.
"Consolidated Operating Cash Flow Ratio" means, with respect to any Person,
the ratio of (i) Consolidated Operating Cash Flow of such Person and its
Restricted Subsidiaries for the four Quarters for which financial information in
respect thereof is available immediately prior to the Transaction Date to (ii)
the aggregate Fixed Charges of such Person and its Restricted Subsidiaries for
such four Quarters, such Fixed Charges to be calculated on the basis of the
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amount of the Indebtedness and Capitalized Lease Obligations of such Person and
its Restricted Subsidiaries outstanding on the Transaction Date and assuming the
continuation of market interest rate levels prevailing on the Transaction Date
in any calculation of interest rates in respect of floating interest rate
obligations; provided, however, that if such Person or any Restricted Subsidiary
of such Person shall have acquired, sold or otherwise disposed of any Material
Asset or engaged in an Equity Offering during the four full Quarters for which
financial information in respect thereof is available immediately prior to the
Transaction Date or during the period from the end of such fourth full Quarter
to and including the Transaction Date, the calculation required in clause (i)
above will be made giving effect to such acquisition, sale or disposition or the
other investment of the Net Available Proceeds of such Equity Offering on a pro
forma basis as if such acquisition, sale, disposition or investment had occurred
at the beginning of such four full Quarter period without giving effect to
clause (iii) of the definition of "Consolidated Net Operating Income" (that is,
including in such calculation the Net Income for the relevant prior period of
any Person acquired in a pooling of interests transaction, notwithstanding the
provisions of said clause (iii)); provided, further, that Fixed Charges of such
Person during the applicable period shall not include the amount of consolidated
interest expense which is directly attributable to Indebtedness to the extent
such Indebtedness is reduced by the proceeds of the incurrence of such
Indebtedness which gave rise to the need to calculate the Consolidated Operating
Cash Flow Ratio. Any such pro forma calculation may include adjustments
appropriate, in the reasonable determination of the Company as set forth in an
Officer's Certificate, to (i) reflect operating expense reductions reasonably
expected to result from the acquisition by the Company of such Material Asset or
(ii) eliminate the effect of any extraordinary accounting event with respect to
any acquired Person on Consolidated Net Operating Income.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the date of the execution of this Indenture is located at 000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Services-Xxxxx or at any other time at such other address as the Trustee may
designate from time to time by notice to the Noteholders.
"Credit Agreement" means that certain Credit Agreement, dated as of
September 25, 1997, by and among the Company and the financial institutions
party thereto, including any related notes, recorded or otherwise perfected
under applicable law (including any conditional sale or other title guarantees,
collateral documents, instruments and agreements executed in connection
therewith), and in each case as amended, modified, extended, renewed, refunded,
replaced or refinanced from time to time.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.12.
"Definitive Securities" means certificated Securities that are in the form
of the Securities set forth in Article Two hereof, that do not include the
information called for by Section 2.06(g)(ii).
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"Depository" means, with respect to Securities issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depository with respect to the Securities, until a successor shall have been
appointed and become such Depository pursuant to the applicable provisions of
this Indenture, and, thereafter, "Depository" shall mean or include such
successor.
"Designated Senior Debt" means (i) any Indebtedness outstanding under the
Credit Agreement, (ii) the Senior Notes, (iii) the term loan under the Loan
Agreement, and (iv) any other Senior Debt permitted under this Indenture, the
principal amount of which is $20.0 million or more and that has been designated
by the Company as "Designated Senior Debt."
"Disposition" means, with respect to any Person, any merger, consolidation
or other business combination involving such Person (whether or not such Person
is the Surviving Person) or the sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of such Person's assets.
"Disqualified Capital Stock" means any Capital Stock of the Company that,
either by its terms or by the terms of any security into which it is convertible
or exchangeable, is, or upon the happening of any event or passage of time would
be, required to be redeemed or purchased (other than pursuant to an offer to
repurchase such Capital Stock following a change of control, which offer may not
be completed until 45 days after completion of the Offer described in Section
12.01), including at the option of the holder, in whole or in part, or has, or
upon the happening of an event or passage of time would have, a redemption,
sinking fund or similar payment due, on or prior to November 15, 2007.
"Equity Offering" means any public or private sale of Capital Stock
(including options, warrants or rights with respect thereto) of the Company or
of Xxxxx USA.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Event of Default" has the meaning as specified in Section 4.01.
"Excess Proceeds" has the meaning as specified in Section 9.16.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Exchange Debentures" means the 11 1/2% Subordinated Exchange Debentures
due 2009 which may be exchanged for the Exchangeable Preferred Stock of Xxxxx
USA, at the option of Xxxxx USA.
"Exchange Offer" means the offer that may be made by the Company pursuant
to the Registration Rights Agreement to exchange Initial Notes for Exchange
Notes.
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"Exchangeable Preferred Stock" means the 11 1/2% Senior Cumulative
Exchangeable Preferred Stock of Xxxxx USA.
"Excluded Contribution" means the net cash proceeds received by the Company
after the Issue Date from (a) contributions to its common equity capital and (b)
the sale (other than to a Subsidiary or to any Company or Subsidiary management
equity plan or stock option plan or any other management or employee benefit
plan or agreement) of Capital Stock of the Company (other than Disqualified
Capital Stock), in each case, designated as Excluded Contributions pursuant to
an Officers' Certificate.
"Existing Indebtedness" means any Indebtedness of the Company and its
Subsidiaries incurred on or outstanding as of the Issue Date and in any event
Indebtedness evidenced by the Credit Agreement whether or not outstanding on the
Issue Date.
"Fixed Charges" of any Person means, for any period, the sum of (i)
consolidated Interest Expense of such Person and its Restricted Subsidiaries,
plus (ii) all but the principal component of rentals in respect of consolidated
Capitalized Lease Obligations of such Person and its Restricted Subsidiaries
paid, accrued or scheduled to be paid or accrued by such Person and its
Restricted Subsidiaries during such period, and determined in accordance with
GAAP plus (iii) all cash dividend payments (excluding items eliminated in
consolidation) on any series of preferred stock of such Person. For purposes of
this definition, (a) interest on Indebtedness which accrues on a fluctuating
basis for periods succeeding the date of determination shall be deemed to accrue
at a rate equal to the average daily rate of interest in effect during such
immediately preceding Quarter, and (b) interest on a Capitalized Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
in good faith by the chief financial officer, treasurer or controller of such
Person to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP (including Statement of Financial Accounting Standards
No. 13 of the Financial Accounting Standards Board).
"GAAP" means 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 entities as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
"Global Note Legend" means the legend set forth in Section 2.06(g)(ii),
which is required to be placed on all Global Securities issued under this
Indenture.
"Global Security" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A hereto issued in accordance with Article 2 hereof.
"Guaranty" means a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including,
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without limitation, letters of credit and reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Gulf Merger Agreement" means the Agreement and Plan of Merger, dated as of
November 3, 1995, among the Company, Gulf Resources Corporation and GFR, Inc.
"Gulf Oil Purchase Contract" means the Crude Oil Purchase Contract between
GFR, Inc. and Gulf Resources Corporation.
"Gulf Payments" means all payments (other than the initial purchase price
of $26.9 million under the Gulf Oil Purchase Contract) to Gulf Resources
Corporation, a Panamanian corporation, and/or any of its Affiliates, in each
case, pursuant to the Gulf Merger Agreement, the Gulf Oil Purchase Contract, the
Gulf Stockholders' Agreement and the Gulf Pledge Agreement, as each is in effect
on the date hereof.
"Gulf Pledge Agreement" means the Pledge Agreement among the Company, Gulf
Resources Corporation and Gulf Resources Holdings, Inc.
"Gulf Stockholders' Agreement" means the Stockholders' Agreement among the
Company, Gulf Resources Corporation and Gulf Resources Holdings, Inc.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"IAI Global Note" means the global Note in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of and registered in the name of the Depository or its nominee
and that will be issued in a denomination equal to the outstanding principal
amount of the Notes sold to Institutional Accredited Investors.
"Indebtedness" with respect to any Person, means any indebtedness,
including, in the case of the Company, the indebtedness evidenced by the Notes,
whether or not contingent, in respect of borrowed money or evidenced by bonds,
notes, debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or representing the balance deferred and unpaid
of the purchase price of any property (including pursuant to Capital Leases)
(except any such balance that constitutes a trade payable in the ordinary course
of business that is not overdue by more than 90 days from the invoice date or is
being contested in good faith), if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet of such Person
prepared on a consolidated basis in accordance with GAAP, and shall also
include, to the extent not otherwise included, the Guaranty of Indebtedness of
other Persons not included in the financial statements of the Company, the
maximum fixed redemption or repurchase price of Disqualified Capital Stock (or
if not redeemable or subject to repurchase, the issue price) and the maximum
fixed redemption or repurchase price (or if not redeemable or subject to
repurchase, the issue price) of Preferred Stock issued by any Restricted
Subsidiary of the Company to any Person other than to the Company or a
Restricted Subsidiary.
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"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Security through a Participant.
"Initial Purchaser" means an entity that purchases Securities directly from
the Company on the Issue Date.
"Interest Expense" of any Person means, for any period, the aggregate
amount of interest expense in respect of Indebtedness (excluding (a) the Chevron
Payment, (b) the AOC Payment, (c) the Gulf Payments and (d) the amortization of
debt issuance expense relating to the Securities, the Senior Notes and the Loan
Agreement, but including without limitation or duplication (i) amortization of
debt issuance expense with respect to other Indebtedness, (ii) amortization of
original issue discount on any Indebtedness and (iii) the interest portion of
any deferred payment obligation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financings and the net cost associated with Interest Swap Obligations) paid,
accrued or scheduled to be paid or accrued by such Person during such period,
determined in accordance with GAAP.
"Interest Payment Date" means the date or dates set forth on the face of
the Security, or if any such day is not a Business Day, on the next succeeding
Business Day.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Interest Swap Obligations" means, when used with reference to any Person,
the obligations of such person under (i) interest rate swap agreements, interest
rate exchange agreements, interest rate cap agreements, and interest rate collar
agreements, (ii) currency swap agreements and currency exchange agreements and
(iii) other similar agreements or arrangements, which are, in each such case,
designed solely to protect such Person against fluctuations in interest rates or
currency exchange rates.
"Investment" means, when used with reference to any Person, any direct or
indirect advances, loans or other extensions of credit or capital contributions
by such Person to (by means of transfers of property to others or payments for
property or services for the account or use of others, or otherwise), or
purchases or acquisitions by such Person of Capital Stock, bonds, notes,
debentures or other securities issued by, any other Person or any Guaranty or
assumption of any liability (contingent or otherwise) by such Person of any
Indebtedness or Obligations of any other Person and all other items that are or
would be classified as investments on a balance sheet prepared in accordance
with GAAP.
11
"Investment Grade" means (i) a Xxxxx'x rating of Baa3 or higher and an S&P
rating of at least BB+ or (ii) an S&P rating of BBB- or higher and a Xxxxx'x
rating of at least Ba1 or, in each case, if Xxxxx'x or S&P shall change their
rating system, equivalent ratings.
"Investment Grade Rating Event" means the assignment of an Investment Grade
rating by Xxxxx'x or S & P.
"Issue Date" means the date set forth in the first paragraph on the face of
the Security.
"Letter of Transmittal" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind (except for taxes not yet
owing) in respect of such asset, whether or not filed, retention agreement, any
lease in the nature thereof, any option or other agreement to sell and, with
respect to which, any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Loan Agreement" means the credit agreement, dated as of November 21, 1997,
among the Company, certain lenders, Xxxxxxx Xxxxx Credit Partners L.P., as
arranger, administrative agent and syndication agent and State Street Bank and
Trust Company of Missouri, N.A., as paying agent, as amended from time to time.
"Material Asset" means, with respect to the Company or any Restricted
Subsidiary of the Company, any asset, related group of assets, business or
division of the Company or any Restricted Subsidiary of the Company (including
any capital stock of any Restricted Subsidiary of the Company) which (i) for the
most recent fiscal year of the Company, accounted or would have accounted for
more than 3% of the consolidated revenues of the Company or (ii) as at the end
of such fiscal year, represented or would have represented more than 3% of the
consolidated assets of the Company or has a fair market value in excess of $10
million, all as shown (x) with respect to any sale or disposition, on the
consolidated financial statements of the Company for such fiscal year or such
shorter period as such assets, business or divisions were owned by the Company
or any Restricted Subsidiary of the Company and (y) with respect to any
acquisition, on consolidated pro forma financial statements of the Company for
the four full Quarters for which financial information in respect thereof is
available immediately prior to such acquisition, giving effect thereto on a pro
forma basis as if such acquisition had occurred at the beginning of such four
full Quarters.
"Maturity" means, with respect to any Notes, the date on which the
principal of such Notes becomes due and payable as provided herein, whether at
the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
12
"Net Available Proceeds" means cash or readily marketable cash equivalents
received (including by way of sale or discounting of a note, installment
receivable or other receivable, but excluding any other consideration received
in the form of assumption by the acquiree of Indebtedness or other obligations
relating to such properties or assets or received in any other noncash form) net
of (i) all legal and accounting expenses, commissions and other fees and
expenses incurred and all federal, state, provincial, foreign and local taxes
required to be accrued as a liability as a consequence of such issuance, and
(ii) all payments made by such Person or its Subsidiaries on any Indebtedness
which must, in order to obtain a necessary consent to such issuance or by
applicable law, be repaid out of the proceeds from such issuance.
"Net Income" of any Person for any period means the net income (loss) from
continuing operations of such Person for such period, determined in accordance
with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Obligations" means any principal (and premium, if any), interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offer" has the meaning as specified in Section 10.09.
"Officers' Certificate" means a certificate signed by at least two officers
of the Company, one signature being that of the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President, and the other
signature being that of the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 9.04 shall
be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, which shall be reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
13
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities which have been paid pursuant to Section 2.07 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company 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 Securities which
a Responsible Officer of the Trustee actually knows to be so owned shall be
so disregarded. 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 Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Participant" means, with respect to the Depository, Euroclear or Cedel, a
Person who has an account with the Depository, Euroclear or Cedel, respectively
(and, with respect to The Depository Trust Company, shall include Euroclear and
Cedel).
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company. The Company initially appoints the Trustee as Paying Agent.
"Permitted Indebtedness" means Indebtedness incurred by the Company or its
Restricted Subsidiaries (i) to renew, extend, refinance or refund Indebtedness
that is permitted to be incurred pursuant to the Consolidated Operating Cash
Flow Ratio test set forth in Section 9.12 or clauses (ii) through (iv) and (xi)
below; provided, however, that such Indebtedness does not exceed the principal
amount of the Indebtedness so renewed, extended, refinanced or refunded plus the
amount of any premium required to be paid in connection with such refinancing
pursuant to the terms of the Indebtedness refinanced or the amount of any
premium reasonably determined by the Company or
14
such Restricted Subsidiary as necessary to accomplish such refinancing by means
of a tender offer or privately negotiated repurchase, plus the expenses of the
Company or such Restricted Subsidiary incurred in connection with such
refinancing; and provided, however, that Indebtedness the proceeds of which are
used to refinance or refund such Indebtedness shall only be permitted if (A) in
the case of any refinancing or refunding of Indebtedness that is pari passu with
the Notes the refinancing or refunding Indebtedness is made pari passu with the
Notes or subordinated to the Notes, (B) in the case of any refinancing or
refunding of Indebtedness that is subordinated to the Notes the refinancing or
refunding of Indebtedness is made subordinated to the Notes at least to the same
extent as such Indebtedness being refinanced or refunded was subordinated to the
Notes and (C) in the case of the refinancing or refunding of Indebtedness that
is subordinated to the Notes, the refinancing or refunding Indebtedness by its
terms, or by the terms of any agreement or instrument pursuant to which such
Indebtedness is issued, (x) does not provide for payments of principal of such
Indebtedness at the stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any mandatory redemption, defeasance, retirement
or repurchase thereof by the Company or such Restricted Subsidiary (including
any redemption, retirement or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by virtue of acceleration
of such Indebtedness upon an event of default thereunder), in each case prior to
the final stated maturity of the Indebtedness being refinanced or refunded and
(y) does not permit redemption or other retirement (including pursuant to an
offer to purchase made by the Company or such Restricted Subsidiary) of such
Indebtedness at the option of the holder thereof prior to the final stated
maturity of the Indebtedness being refinanced or refunded, other than a
redemption or other retirement at the option of the holder of such Indebtedness
(including pursuant to an offer to purchase made by the Company or such
Restricted Subsidiary), which is conditioned upon the change of control of the
Company or such Restricted Subsidiary); (ii) arising from time to time under the
Credit Agreement in an aggregate principal amount which, together with any
obligations under clause (xi) below, do not exceed the greater of (a) $500
million at any one time outstanding less the aggregate amount of all proceeds of
all Asset Dispositions that have been applied since the Issue Date to
permanently reduce the outstanding amount of such Indebtedness and (b) the
amount of the Borrowing Base as of such date (calculated on a pro forma basis
after giving effect to such borrowing and the application of the proceeds
therefrom); (iii) outstanding or incurred on the Issue Date; (iv) evidenced by
trade letters of credit incurred in the ordinary course of business not to
exceed $20 million in the aggregate at any time; (v) between or among the
Company and/or its Restricted Subsidiaries other than Restricted Subsidiaries
owned in any part by the Principal Shareholders; (vi) which is Subordinated
Debt; (vii) arising out of Sale and Leaseback Transactions or Capitalized Lease
Obligations relating to computers and other office equipment and elements,
catalysts or other chemicals used in connection with the refining of petroleum
or petroleum by-products; (viii) the proceeds of which are used to make the
Chevron Payment, the AOC Payment and the Gulf Payments; (ix) arising out of
Interest Swap Obligations; (x) in connection with capital projects qualifying
under Section 142(a) (or any successor provision) of the Internal Revenue Code
of 1986, as amended, in an amount not to exceed $75 million in the aggregate at
any time; (xi) obligations of the Company or any Restricted Subsidiary in
connection with any Qualified Securitization Transaction in an amount which,
together with any amount under clause (ii) above, does not exceed the greater of
(a) $500 million at any one time outstanding less the aggregate amount of all
proceeds of all Asset Dispositions that have been applied since the Issue Date
to permanently reduce the outstanding amount of such Indebtedness and (b) the
amount of the Borrowing Base as of such date (calculated on a pro forma basis
after giving effect to such borrowing and the application of the
15
proceeds therefrom); (xii) any guarantee by the Company of Indebtedness of any
of its Restricted Subsidiaries so long as the incurrence of such Indebtedness is
permitted to be incurred under Section 9.12; (xiii) Indebtedness or preferred
stock of Persons that are acquired by the Company or any of its Restricted
Subsidiaries or merged into the Company or a Restricted Subsidiary in accordance
with the terms of this Indenture; provided that such Indebtedness or preferred
stock is not incurred in contemplation of such acquisition or merger; and
provided further that after giving effect to such acquisition or merger either
(A) the Company would be permitted to incur at least $1.00 of additional
Indebtedness under the Consolidated Operating Cash Flow Ratio test set forth in
Section 9.12 or (B) the Company's Consolidated Operating Cash Flow Ratio is
equal to or greater than such ratio immediately prior to such acquisition or
merger; (xiv) in an amount not greater than twice the aggregate amount of cash
contributions made to the capital of the Company; (xv) in exchange for, or the
proceeds of which are used to refund or refinance the 10 7/8% Notes; provided,
however, that after giving effect to such exchange, refunding or refinancing,
the Consolidating Operating Cash Flow Ratio exceeds 1.75 to 1.0 and such
Indebtedness shall be subordinated to the Securities to at least the same extent
as the Securities are subordinated to the Securities; and (xvi) in addition to
Indebtedness permitted by clauses (i) through (xv) above, Indebtedness not to
exceed on a consolidated basis for the Company and its Restricted Subsidiaries
at any time $75 million.
"Permitted Junior Securities" means Capital Stock (and all warrants, options
or other rights to acquire Capital Stock) in the Company or debt securities that
are subordinated to Senior Debt (and any debt securities issued in exchange for
Senior Debt) to substantially the same extent as, or to a greater extent than,
the Securities are subordinated to Senior Debt pursuant to this Indenture.
"Permitted Liens" means (i) Liens in favor of the Company; (ii) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with the Company, provided that such Liens were in existence prior
to the contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company; (iii) Liens on property existing at the time of acquisition thereof by
the Company, provided that such Liens were in existence prior to the
contemplation of such acquisition; (iv) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (v)
Liens existing on the Issue Date; (vi) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(vii) Liens imposed by law, such as mechanics', carriers', warehousemen's,
materialmen's, and vendors' Liens, incurred in good faith in the ordinary course
of business with respect to amounts not yet delinquent or being contested in
good faith by appropriate proceedings if a reserve or other appropriate
provisions, if any, as shall be required by GAAP shall have been made therefor;
(viii) zoning restrictions, easements, licenses, covenants, reservations,
restrictions on the use of real property or minor irregularities of title
incident thereto that do not, in the aggregate, materially detract from the
value of the property or the assets of the Company or impair the use of such
property in the operation of the Company's business; (ix) judgment Liens to the
extent that such judgments do not cause or constitute a Default or an Event of
Default; (x)
16
Liens to secure the payment of all or a part of the purchase price of property
or assets acquired or the construction costs of property or assets constructed
in the ordinary course of business on or after the Issue Date, provided that (a)
such property or assets are used in the Principal Business of the Company, (b)
at the time of incurrence of any such Lien, the aggregate principal amount of
the obligations secured by such Lien shall not exceed the lesser of the cost or
fair market value of the assets or property (or portions thereof) so acquired or
constructed, (c) each such Lien shall encumber only the assets or property (or
portions thereof) so acquired or constructed and shall attach to such assets or
property within 180 days of the purchase or construction thereof and (d) any
Indebtedness secured by such Lien shall have been permitted to be incurred under
the covenant set forth in Section 9.12; (xi) Liens incurred in the ordinary
course of business of the Company with respect to obligations that do not exceed
5% of Consolidated Net Tangible Assets at any one time outstanding; (xii) Liens
incurred in connection with Interest Swap Obligations; (xiii) Liens on any
Securitization Program Assets in connection with any Qualified Securitization
Transaction; (xiv) Liens to secure obligations owing from time to time under the
Credit Agreement and Guaranties thereof; and (xv) Liens to secure Senior Debt.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, estate, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" has the meaning specified in the third paragraph of Exhibit
A attached hereto.
"Port Xxxxxx Refinery" means the refinery in Port Xxxxxx, Texas and certain
other assets acquired from Chevron U.S.A., Inc.
"Preferred Stock" means any share of Capital Stock of any Person in respect of
which the holder thereof is entitled to receive payment before any other payment
is made with respect to any other Capital Stock of such Person.
"Preferred Stock Dividends" means, with respect to any Person for any period,
the amount of regularly scheduled dividends accrued, accruable, paid or payable
during such period, whether in cash or otherwise, with respect to any Preferred
Stock of such Person.
"Principal Business" means, with respect to the Company and its Restricted
Subsidiaries, (i) the business of the acquisition, processing, marketing,
refining, storage and/or transportation of hydrocarbons and/or royalty or other
interests in crude oil or associated products related thereto, (ii) the
acquisition, operation, improvement, leasing and other use of convenience
stores, retail service stations, truck stops and other public accommodations in
connection therewith, (iii) any business currently engaged in by the Company or
its Restricted Subsidiaries on the Issue Date, and (iv) any activity or business
that is a reasonable extension, development or expansion of, or reasonably
related to, any of the foregoing.
"Principal Property" means (i) any refinery and related pipelines,
terminalling and processing equipment or (ii) any other real property or
marketing assets or related group of such assets of the Company having a fair
market value in excess of $20 million.
17
"Principal Shareholders" means (i) Blackstone, (ii) Occidental Petroleum
Corporation, (iii) Gulf Resources Corporation and (iv) Affiliates of the Persons
described in the foregoing clauses (i) through (iii), other than the Company and
its Subsidiaries.
"Private Placement Legend" means the legend set forth in Section 2.06(g)(i)
to be placed on all Initial Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Purchase Date" has the meaning as specified in Section 10.09.
"Qualified Securitization Transaction" means any transaction or series of
transactions that may be entered into by the Company or any Subsidiary pursuant
to which the Company or any Subsidiary may sell, convey, grant a security
interest in or otherwise transfer to a Securitization Special Purpose Entity,
and such Securitization Special Purpose Entity may sell, convey, grant a
security interest in, or otherwise transfer to any other Person, any
Securitization Program Assets (whether now existing or arising in the future).
"Quarter" means a fiscal quarterly period of the Company.
"Rating Agencies" means (i) S&P and Moody's or (ii) if S&P or Moody's or
both of them are not making ratings of the Notes publicly available, a
nationally recognized U.S. rating agency or agencies, as the case may be,
selected by the Company, which will be substituted for S&P or Moody's or both,
as the case may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories (any of which may include a "+" or "-"); AAA, AA, A, BBB, BB, B, CCC,
CC, C and D (or equivalent successor categories); (ii) with respect to Moody's,
any of the following categories (any of which may include a "1," "2" or "3");
Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories),
and (iii) the equivalent of any such categories of S&P or Moody's used by
another Rating Agency, if applicable.
"Rating Decline" means that at any time within 90 days (which period shall
be extended so long as the rating of the Notes is under publicly announced
consideration for possible down grade by any Rating Agency) after the date of
public notice of a Change of Control, or of the intention of the Company or of
any Person to effect a Change of Control, the rating of the Notes is decreased
by both Rating Agencies by one or more categories and the ratings on the Notes
following such downgrade is below Investment Grade.
"Receivables" means all rights of the Company or any Subsidiary of the
Company to payments (whether constituting accounts, chattel paper, instruments,
general intangibles or otherwise, and including the right to payment of any
interest or finance charges), which rights are identified in the accounting
records of the Company or such Subsidiary as accounts receivable.
18
"Redemption Date," when used with respect to any Note to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed, means
the price at which it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means the Exchange and Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Permanent Global Note" means a permanent global Security in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depository or its nominee, and issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period and authenticated as provided in Section
2.02 hereof.
"Regulation S Temporary Global Note" means a temporary global Security in the
form of Exhibit A-1 hereto bearing the Private Placement Legend and deposited
with or on behalf of and registered in the name of the Depository or its
nominee, issued in a denomination equal to the outstanding principal amount of
the Notes initially sold in reliance on Rule 903 of Regulation S.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the date specified (whether or not a Business Day) for that purpose as
contemplated by Section 2.01.
"Responsible Officer" shall mean when used with respect to the Trustee, any
officer within the Corporate Trust Office including any Vice President, Managing
Director, Assistant Vice President, Corporate Trust Officer, Assistant Corporate
Trust Officer, Secretary, Assistant Secretary or Assistant Treasurer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"Restricted Debt Prepayment" means any purchase, redemption, defeasance
(including, but not limited to, in-substance or legal defeasance) or other
acquisition or retirement for value (collectively a "prepayment") other than in
connection with a concurrent issuance of pari passu or Subordinated
Indebtedness, directly or indirectly, by the Company or a Restricted Subsidiary
of the Company, prior to the scheduled maturity on or prior to any scheduled
repayment of principal (and premium, if any) or sinking fund payment in respect
of Indebtedness of the Company (other than the Notes) which is subordinate in
right of payment to the Notes.
19
"Restricted Definitive Security" means a Definitive Security bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Security bearing the Private Placement
Legend.
"Restricted Investment" means any direct or indirect Investment by the Company
or any Restricted Subsidiary of the Company in (i) any Affiliate of the Company
which is not a Restricted Subsidiary of the Company and (ii) any Unrestricted
Subsidiary of the Company, other than direct or indirect investments in (a)
Polymer Asphalt L.L.C., a Missouri limited liability company (b) Bagel Street
Holdings, Inc. and (c) any pipeline company in which the Company or any of its
Restricted Subsidiaries now owns or hereafter acquires any interest; provided
that the aggregate amount of Investments made by the Company or any of its
Restricted Subsidiaries pursuant to clauses (a), (b) and (c) above shall not
exceed $25 million in the aggregate at any one time outstanding provided, that
no Investment in a Securitization Special Purpose Entity in connection with a
Qualified Securitization Transaction shall be a Restricted Investment.
"Restricted Payment" means (i) any Stock Payment, (ii) any Restricted
Investment, or (iii) any Restricted Debt Prepayment. Notwithstanding the
foregoing, Restricted Payments shall not include (a) payments by the Company to
any Restricted Subsidiary of the Company, (b) payments by any Restricted
Subsidiary of the Company to the Company or any other Restricted Subsidiary of
the Company, (c) the Chevron Payment, (d) the AOC Payment and (e) the Gulf
Payments.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not (i) an Unrestricted Subsidiary or (ii) a direct or indirect
Subsidiary of an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Rating Services and its successors.
"Sale and Leaseback Transaction" of any Person means an arrangement with any
lender or investor or to which such lender or investor is a party providing for
the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than 365 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Securities" has the meaning stated in the first recital of this Indenture and
more particularly means any Securities authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
20
"Securitization Program Assets" means (a) all Receivables and inventory which
are described as being transferred by the Company or any Subsidiary of the
Company pursuant to documents relating to any Qualified Securitization
Transaction, (b) all Securitization Related Assets, and (c) all collections
(including recoveries) and other proceeds of the assets described in the
foregoing clauses.
"Securitization Related Assets" means (i) any rights arising under the
documentation governing or relating to Receivables (including rights in respect
of Liens securing such Receivables and other credit support in respect of such
Receivables) or to inventory, (ii) any proceeds of such Receivables or inventory
and any lockboxes or accounts in which such proceeds are deposited, (iii) spread
accounts and other similar accounts (and any amounts on deposit therein)
established in connection with a Qualified Securitization Transaction, (iv) any
warranty, indemnity, dilution and other intercompany claim arising out of the
documents relating to such Qualified Securitization Transaction and (v) other
assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving accounts receivable or inventory.
"Securitization Special Purpose Entity" means a Person (including, without
limitation, a Subsidiary of the Company) created in connection with the
transactions contemplated by a Qualified Securitization Transaction, which
Person engages in no activities other than those incidental to such Qualified
Securitization Transaction.
"Security Custodian" means the Trustee, as custodian with respect to the
Global Securities, or any successor entity thereto.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 2.03.
"Senior Debt" has the meaning specified in Section 11.02.
"Senior Notes" means the 8 3/8% Senior Notes of the Company due 2007.
"Shareholder/Affiliate Transaction" has the meaning as specified in Section
9.11.
"Special Interest" has the meaning as specified in the first paragraph of
Exhibit A attached hereto.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Company with the consent of the Trustee pursuant to the third
paragraph of Exhibit A attached hereto.
"Stated Maturity" means the date specified in the first paragraph of the
Security as the fixed date on which the principal of such Security is due and
payable.
21
"Stock Payment" means, with respect to the Company, any dividend, either in
cash or in property (except dividends payable in Capital Stock of the Company
which is not convertible into Indebtedness), on, or the making by the Company of
any other distribution in respect of, its Capital Stock, now or hereafter
outstanding, or the redemption, repurchase, retirement, defeasance or any
acquisition for value by the Company, directly or indirectly, of its Capital
Stock or any warrants, rights or options to purchase or acquire shares of any
class of its Capital Stock, now or hereafter outstanding (other than in exchange
for the Company's Capital Stock (other than Disqualified Capital Stock) or
options, warrants or other rights to purchase the Company's Capital Stock (other
than Disqualified Capital Stock)).
"Stock Purchase and Redemption Agreement" means that certain Stock Purchase
and Redemption Agreement dated as of December 30, 1992, by and among AOC Limited
Partnership, P. Xxxxxxx Xxxxxxx, Xxxxxx X. Xxxxxxxxx, G&N Investments, Inc., The
Horsham Corporation, the Company and Xxxxx USA.
"Subordinated Indebtedness" means, with respect to the Notes, any Indebtedness
of the Company which is subordinated in right of payment to the Notes and with
respect to which no payments of principal (by way of sinking fund, mandatory
redemption, maturity or otherwise), including, without limitation, at the option
of the holder thereof (other than pursuant to an offer to repurchase such
Subordinated Indebtedness following a change of control, which offer may not be
completed until 45 days after completion of the Offer described in Section
12.01) are required to be made by the Company at any time prior to the Stated
Maturity of such Notes.
"Subsidiary" of any Person means (i) a corporation more than 50% of the total
voting power of all classes of the outstanding voting stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and the power to direct the policies, management and affairs thereof.
"Surviving Person" means, with respect to any Person involved in or that makes
any Disposition, the Person formed by or surviving such Disposition or the
Person to which such Disposition is made.
"Transaction Date" means the date on which the Indebtedness giving rise to the
need to calculate the Consolidated Operating Cash Flow Ratio was incurred or the
date on which, pursuant to the terms of this Indenture, the transaction giving
rise to the need to calculate the Consolidated Operating Cash Flow Ratio
occurred.
"Transfer Restricted Securities" means Securities that bear or are required to
bear the legend set forth in Section 2.06(g)(i) hereof.
"TrizecHahn" means the Trizec Xxxx Corporation.
22
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the
Issue Date; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee
"Unrestricted Definitive Security" means one or more Definitive Securities
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent Global Security in the form of
Exhibit A attached hereto that bears the Global Note Legend and that has the
"Schedule of Exchanges of Interests in the Global Security" attached thereto,
and that is deposited with or on behalf of and registered in the name of the
Depository, representing a series of Securities that do not bear and are not
required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary that is designated by the board
of directors of the Company as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a) has no Indebtedness
other than Non-Recourse Debt; (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary of
the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company; (c) is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Capital Stock (including options,
warrants or other rights to acquire Capital Stock) or (y) to maintain or
preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results; and (d) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
the Company or any of its Restricted Subsidiaries. The board of directors of the
Company may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that such designation shall be deemed to be an incurrence
of Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 9.12 hereof, and
(ii) no Default or Event of Default would be in existence following such
designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Vice President", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
23
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
"Wholly Owned U.S. Restricted Subsidiary" of any Person means a Wholly Owned
Restricted Subsidiary of such Person which is organized under the laws of any
state in the United States or of the District of Columbia.
Section 1.02. Compliance Certificates and Opinions
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual, 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, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
24
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which such
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and shall be conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 6.01)
prior to such first solicitation or vote, as the case may be. With regard to
any record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
25
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 1.05. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Services-Xxxxx, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail with first-class postage prepaid, if
mailed; when receipt acknowledged, if sent by facsimile; and the next business
day after timely delivery to the courier, if sent by recognized overnight
courier guaranteeing next-day delivery; provided that notice to the Trustee
shall be deemed given only when received by the Trustee.
Section 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
26
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail with first-class postage prepaid, if
mailed; when receipt acknowledged, if sent by facsimile; and the next business
day after timely delivery to the courier, if sent by recognized overnight
courier guaranteeing next-day delivery; provided that notice to the Trustee
shall be deemed given only when received by the Trustee.
Section 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act, the latter provision shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in the 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 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
27
YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF).
Section 1.13. Legal Holidays.
In any case where any Redemption Date, Purchase Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of principal
(and premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Redemption Date, Purchase Date or at the Stated Maturity.
Section 1.14. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture for any claim based on, in respect of or
by reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
ARTICLE 2
---------
THE SECURITIES
--------------
Section 2.01. Form and Dating; Issuable in Series.
(a) The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the date of its
authentication. The Securities will be issued in registered form, without
coupons and only in denominations of $1,000 and integral multiples of
$1,000.
(b) The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
(c) Global Securities. Notes issued in global form shall be
substantially in the form of Exhibits A and A-1 attached hereto (including
the Global Note Legend thereon and the "Schedule of Exchanges of Interests
in the Global Securities" attached thereto). Notes issued in definitive
form shall be substantially in the form of Exhibit A or A-1 attached hereto
(but without the Global Note Legend thereon and without the "Schedule of
Exchanges of Interests in the Global Securities" attached thereto). Each
Global Security shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be
28
reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Security to reflect the amount of any increase
or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Security Custodian,
at the direction of the Trustee, in accordance with instructions given by
the Holder thereof as required by Section 2.06 hereof.
(d) Temporary Global Securities. Notes offered and sold in
reliance on Regulation S shall be issued initially in the form of the
Regulation S Temporary Global Note, which shall be deposited on behalf of
the purchasers of the Notes represented thereby with the Trustee, at its
New York office, as custodian for the Depository, and registered in the
name of the Depository or the nominee of the Depository for the accounts of
designated agents holding on behalf of Euroclear or Cedel Bank, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The Restricted Period shall terminate upon the last to occur of
(i) the 40th day of the Restricted Period and (ii) the receipt by the
Trustee of (a) copies of certificates from Euroclear and Cedel Bank
certifying that they have received certification of non-United States
beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (except to the extent of any beneficial
owners thereof who acquired an interest therein during the Restricted
Period pursuant to another exemption from registration under the Securities
Act and who will take delivery of a beneficial ownership interest in a 144A
Global Note or an IAI Global Note bearing a Private Placement Legend, all
as contemplated by Section 2.06(a)(ii) hereof), and (b) an Officers'
Certificate from the Company stating that all conditions precedent to the
issuance of the Regulation S Permanent Global Note have been satisfied.
Following the termination of the Restricted Period, beneficial interests in
the Regulation S Temporary Global Note shall be exchanged for beneficial
interests in Regulation S Permanent Global Notes pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Notes, the Trustee shall cancel the Regulation S Temporary
Global Note. The aggregate principal amount of the Regulation S Temporary
Global Note and the Regulation S Permanent Global Notes may from time to
time be increased or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(e) Euroclear and Cedel Procedures Applicable. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S
Temporary Global Note and the Regulation S Permanent Global Notes that are
held by Participants through Euroclear or Cedel Bank.
(f) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
(g) The Securities may be issued from time to time in one or
more series. There shall be established in or pursuant to a Board
Resolution, and set forth in an
29
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to this Indenture);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the securities of the Series
shall bear interest, if any, the date or dates from which such interest shall
accrue, the interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on any Interest Payment Date;
(5) the place or places where the principal of (and premium, if
any) and interest on Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation, and, where applicable, the obligation of the Company to select the
Securities to be redeemed;
(8) if other than as set forth herein, the denominations in
which Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.02;
(10) additional Events of Default with respect to Securities of
the series, if any, other than those set forth herein;
(11) the application, if any, of either or both of section 13.02
and section 13.03 to the Securities of the series;
30
(12) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(13) any additions or changes to or deletions from the
provisions of Articles 1, 7, 9 and 10 hereof;
(14) the exchangeability, if any, of any series of Securities
issued without registration under the Securities Act for new Securities of the
same series to be registered under the Securities Act pursuant to an exchange
offer, if other than as set forth herein; and
(15) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
Section 2.02. Execution and Authentication.
An Officer shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time a Security is authenticated, the Security shall nevertheless
be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate Securities for original issue up to the aggregate
principal amount stated in paragraph 1 of the Securities. The aggregate
principal amount of Securities outstanding at any time may not exceed such
amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Security Registrar")
and an office or agency where Securities may be presented for payment ("Paying
Agent"). The Security Registrar shall keep a register of the Securities and of
their transfer and exchange (the "Security Register"). The Company may appoint
one or more co-registrars and one or more additional paying agents. The term
"Security Registrar" includes any co-registrar and the term "Paying Agent"
includes any additional paying agent. The Company may change any Paying Agent
or Security Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain
31
another entity as Security Registrar or Paying Agent, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as Paying Agent or Security
Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depository with respect to the Global Securities.
The Company initially appoints the Trustee to act as the Security
Registrar and Paying Agent and to act as Security Custodian with respect to the
Global Securities.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Securities, and will notify the
Trustee in writing of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee shall serve
as Paying Agent for the Securities.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Security Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of
Securities and the Company shall otherwise comply with TIA (S) 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. A Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or to another
nominee of the Depository, the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository. All Global Securities
(except the Regulation S Temporary Global Note) will be exchanged by the Company
for Definitive Securities if (i) the Company delivers to the Trustee written
notice from the Depository that it is unwilling or unable to continue to act as
Depository or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depository is not appointed by the
Company within 120 days after the date of such notice from the Depository or
(ii) the Company in its sole discretion determines that the Global Securities
(in whole but not in part) should be exchanged for Definitive Securities and
delivers a written notice to such effect
32
to the Trustee. Upon the occurrence of either of the preceding events in (i) or
(ii) above, Definitive Securities shall be issued in such names as the
Depository shall instruct the Trustee. Global Securities also may be exchanged
or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Security or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or 2.10 hereof, shall be authenticated and delivered in the form of, and shall
be, a Global Security. A Global Security may not be exchanged for another Note
other than as provided in this Section 2.06(a), however, beneficial interests in
a Global Security may be transferred and exchanged as provided in Section
2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Securities. The transfer and exchange of beneficial interests in the Global
Securities shall be effected through the Depository, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Securities also shall
require compliance with either subparagraph (i) or (ii) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Security. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with
the transfer restrictions set forth in the Private Placement Legend;
provided, however, that transfers of beneficial interests in the Regulation
S Temporary Global Security may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Security Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Securities. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above, the
transferor of such beneficial interest must deliver to the Security
Registrar either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depository in accordance with the Applicable
Procedures directing the Depository to credit or cause to be credited a
beneficial interest in another Global Security in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B)
(1) a written order from a Participant or an Indirect Participant given to
the Depository in accordance with the Applicable Procedures directing the
Depository to cause to be issued a Definitive Security in an amount equal
to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depository to the Security Registrar containing
information regarding the Person in whose name such Definitive Security
shall be registered to effect the transfer or exchange referred to in (1)
above. Upon consummation of an Exchange Offer by the Company in accordance
with Section
33
2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall be
deemed to have been satisfied upon receipt by the Security Registrar of the
instructions contained in the Letter of Transmittal delivered by the Holder
of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Securities contained in this Indenture and
the Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Securities
pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Security Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the Regulation
S Permanent Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications and
certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted Global
Note. A beneficial interest in any Restricted Global Note may be exchanged
by any holder thereof for a beneficial interest in an Unrestricted Global
Note or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in
the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement as defined in and in accordance with the Registration
Rights Agreement;
34
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in item
(1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D),
if the Security Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Security Registrar and the
Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the
restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an authentication order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Securities.
(v) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Securities. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest for
a Restricted Definitive Security or to transfer such beneficial interest to
a Person who takes delivery thereof in the form of a Restricted Definitive
Security, then, upon receipt by the Security Registrar of the following
documentation:
35
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Security, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule
904 under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the
instructions a Definitive Security in the appropriate principal
amount. Any Definitive Security issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Security Registrar through instructions
from the Depository and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Securities to the Persons in
whose names such Notes are so registered. Any Definitive Security
issued in exchange for a beneficial interest in a Restricted Global
Note pursuant to this
36
Section 2.06(c)(i) shall bear the Private Placement Legend and shall
be subject to all restrictions on transfer contained therein.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial
interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Security or transferred to a Person who
takes delivery thereof in the form of a Definitive Security.
(vi) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Securities. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Security or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Security only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person participating in
the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement as defined in and in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement as defined in and
in accordance with the Registration Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Definitive Security that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a Definitive Security that does
not bear the Private Placement Legend, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Security
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Security Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
37
herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(vii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Securities. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Security or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Security, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount
of the applicable Global Security to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive
Security issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Security Registrar through instructions from
the Depository and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Securities to the Persons in whose names such
Notes are so registered. Any Definitive Security issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear
the Private Placement Legend.
(d) Transfer and Exchange of Definitive Securities for Beneficial
Interests.
(viii) Restricted Definitive Securities to Beneficial Interests
in Restricted Global Notes. If any Holder of a Restricted Definitive
Securities proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Securities
to a Person who takes delivery thereof in the form of a beneficial interest
in a Restricted Global Note, then, upon receipt by the Security Registrar
of the following documentation:
(A) if the Holder of such Restricted Definitive Security
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Security is being
transferred to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Security is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Security is being
transferred pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities
38
Act, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Security is being
transferred to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than those listed
in subparagraphs (B) through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Security is being
transferred to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Security is being
transferred pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Security,
increase or cause to be increased the aggregate principal amount
of, in the case of clause (A) above, the appropriate Restricted
Global Note, in the case of clause (B) above, the 144A Global
Note, in the case of clause (C) above, the Regulation S Permanent
Global Note, and in all other cases, the IAI Global Note.
(ix) Restricted Definitive Securities to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Securities
may exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Securities to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Security Registrar receives the following:
39
(1) if the Holder of such Definitive Securities proposes
to exchange such Notes for a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Securities proposes
to transfer such Notes to a Person who shall take delivery thereof in the form
of a beneficial interest in the Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D),
if the Security Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Security Registrar and the
Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the
restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee
shall cancel the Definitive Securities and increase or
cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(x) Unrestricted Definitive Securities to Beneficial Interests
in Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Security may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Securities to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Security and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Security to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Securities so transferred.
(a) Transfer and Exchange of Definitive Securities for Definitive
Securities. Upon request by a Holder of Definitive Securities and such Holder's
compliance with the provisions of this Section 2.06(e), the Security Registrar
shall register the transfer or exchange of Definitive Securities. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Security Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Security Registrar duly executed by such Holder or by his attorney, duly
authorized in writing. In addition, the
40
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.06(e).
(i) Restricted Definitive Securities to Restricted Definitive
Securities. Any Restricted Definitive Security may be transferred to and
registered in the name of Persons who take delivery thereof in the form of
a Restricted Definitive Security if the Security Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including
the certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Security to Unrestricted Definitive
Securities. Any Restricted Definitive Security may be exchanged by the
Holder thereof for an Unrestricted Definitive Security or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the Holder of such Restricted Definitive Securities
proposes to exchange such Notes for an Unrestricted Definitive Security, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
41
(2) if the Holder of such Restricted Definitive Securities
proposes to transfer such Notes to a Person who shall take delivery thereof in
the form of an Unrestricted Definitive Security, a certificate from such Holder
in the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D),
if the Security Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to the Company to
the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Unrestricted Definitive Securities to Unrestricted
Definitive Securities. A Holder of Unrestricted Definitive Securities may
transfer such Notes to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Security. Upon receipt of a request to register
such a transfer, the Security Registrar shall register the Unrestricted
Definitive Securities pursuant to the instructions from the Holder thereof.
(b) Exchange Offer. Upon the consummation of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an authentication order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not broker-
dealers, (y) they are not participating in a distribution of the Exchange Notes
and (z) they are not affiliates (as defined in Rule 144) of the Company, and
accepted for exchange in the Exchange Offer and (ii) Definitive Securities in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Securities accepted for exchange in the Exchange Offer. Concurrently
with the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Securities so accepted
Definitive Securities in the appropriate principal amount.
(c) Legends. The following legends shall appear on the face of all
Global Securities and Definitive Securities issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Security and each Definitive Security (and all Notes issued in exchange therefor
or substitution thereof) shall bear the legend in substantially the following
form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN
42
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR
OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING
THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF
RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES
ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION OF TRANSFER OF
THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) OR
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS,
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. EACH IAI THAT IS
NOT A QIB WILL BE REQUIRED TO EFFECT ANY TRANSFER OF NOTES OR INTERESTS
THEREIN (OTHER THAN PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT)
THROUGH ONE OF THE INITIAL PURCHASERS. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
43
(B) Notwithstanding the foregoing, any Global Security or
Definitive Security issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii),
(d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes
issued in exchange therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Note Legend. Each Global Security shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Note Legend. The Regulation
S Temporary Global Note shall bear a legend in substantially the following
form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR BENEFICIAL INTERESTS
IN THE REGULATION S PERMANENT GLOBAL NOTE, ARE AS SPECIFIED IN THE
INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL
OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF INTEREST HEREON."
(d) Cancellation and/or Adjustment of Global Securities. At such time
as all beneficial interests in a particular Global Security have been exchanged
for Definitive Securities or a particular Global Security has been redeemed,
repurchased or canceled in whole and not in part, each such Global Security
shall be returned to or retained and canceled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Security or for Definitive Securities, the principal amount of Notes
represented by such Global Security shall be reduced accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depository at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
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(e) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Securities
and Definitive Securities upon the Company's order or at the Security
Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Security or to a Holder of a Definitive Security for
any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 8.06, 9.16, 10.08 and 10.09 hereof).
(iii) The Security Registrar shall not be required to register
the transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Securities and Definitive Securities issued upon
any registration of transfer or exchange of Global Securities or Definitive
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Definitive Securities surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 10.04 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (c) to register the transfer
of or to exchange a Note between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, the Security Registrar, any Paying Agent, any
Authenticating Agent and the Company may deem and treat the Person in whose
name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Notes and
for all other purposes, and none of the Trustee, the Security Registrar,
any Paying Agent, any Authenticating Agent or the Company shall be affected
by notice to the contrary.
(vii) The Trustee shall authenticate Global Securities and
Definitive Securities in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Security Registrar pursuant to this Section
2.06 to effect a registration of transfer or exchange may be submitted by
facsimile.
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Section 2.07. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate a replacement Security if the Trustee's requirements
are met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Paying Agent, the Security
Registrar and any Authenticating Agent from any loss that any of them may suffer
if a Security is replaced. The Company may charge for its expenses in replacing
a Security.
Every replacement Security is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
Section 2.08. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 9.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Securities payable on that date, then on and after that date
such Securities shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that a Trustee knows are so owned
shall be so disregarded.
Section 2.10. Temporary Securities.
46
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a written
order of the Company signed by two Officers of the Company. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities and
as shall be reasonably acceptable to the Trustee. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities.
Holders of temporary Securities shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Securities (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all canceled
Securities shall be delivered to the Company. The Company may not issue new
Securities to replace Securities that it has paid or that have been delivered to
the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Securities and in Section 9.01 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Security and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date, provided that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
ARTICLE 3.
SATISFACTION AND DISCHARGE
Section 3.01. Satisfaction and Discharge of Indenture.
This Indenture shall, upon the request of the Company, cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities
47
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.07 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 9.03) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) 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
Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust funds
in trust for such purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has 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 this Indenture have
been complied with; and
(4) the Trustee shall have received such other documents and
assurances as the Trustee shall have reasonably requested.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 5.07, the obligations of
the Trustee to any Authenticating Agent under Section 5.15 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 3.02 and the last
paragraph of Section 9.03 shall survive.
Section 3.02. Application of Trust Money.
48
Subject to provisions of the last paragraph of Section 9.03, all money
deposited with the Trustee pursuant to Section 3.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE 4.
REMEDIES
Section 4.01. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be 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):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(3) failure by the Company to observe or perform any covenant,
condition on the part of the Company to be performed or observed pursuant
to Section 7.01 hereof; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any
Restricted Subsidiary of the Company (or the payment of which is guaranteed
by the Company or a Restricted Subsidiary of the Company) , whether such
Indebtedness or guarantee now exists or shall be created hereafter, if (a)
either (i) such default results from the failure to pay principal (and
premium, if any) upon the expressed maturity of such Indebtedness (after
the expiration of any applicable grace period) or (ii) as a result of such
default the maturity of such Indebtedness has been accelerated prior to its
expressed maturity and (b) the principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness with
respect to which the principal (and premium, if any) amount unpaid
49
upon its expressed maturity (after the expiration of any applicable grace
period) , or the maturity of which has been so accelerated, exceeds $25
million; or
(6) a final judgment or final judgments (not subject to appeal) for
the payment of money are entered by a court or courts of competent
jurisdiction against the Company or any Subsidiary of the Company and such
judgment or judgments remain unstayed, in effect and unpaid for a period of
60 consecutive days, provided that the aggregate of all such judgments (to
the extent not paid or to be paid by insurance) exceeds $50 million; or
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Subsidiary of
the Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Subsidiary of the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Subsidiary of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or any Subsidiary of the Company or of any substantial part of
the property of the Company or any Subsidiary of the Company, or ordering
the winding up or liquidation of the affairs of the Company or any
Subsidiary of the Company, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(8) the commencement by the Company or any Subsidiary of the Company
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company or any Subsidiary of the Company to the entry of a
decree or order for relief in respect of the Company or any Subsidiary of
the Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or any Subsidiary of the Company, or the
filing by the Company or any Subsidiary of the Company of a petition or
answer or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by the Company or any Subsidiary of
the Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Subsidiary of
the Company or of any substantial part of their respective property, or the
making by the Company or any Subsidiary of the Company of an assignment for
the benefit of creditors, or the admission by either the Company or any
Subsidiary of the Company in writing of an inability to pay debts generally
as they become due, or the taking of corporate action by the Company or any
Subsidiary of the Company in furtherance of any such action.
50
Section 4.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
clause 4.01(7) or (8)) with respect to the Securities at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities may declare
all of the Securities to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration the Notes shall become immediately due and payable.
In the event of a declaration of acceleration because an Event of
Default specified in Section 4.01(5) has occurred and is continuing, such
declaration of acceleration shall be automatically annulled if the holders of
the Indebtedness which is the subject of such Event of Default have rescinded
their declaration of acceleration in respect of such Indebtedness within 90-days
thereof and the Trustee has received written notice of such cure, waiver or
rescission and no other Event of Default has occurred during such 90-day period
which has not been cured or waived. If an Event of Default specified in clauses
(7) or (8) of Section 4.01 occurs, the Securities then outstanding shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest, including Special Interest, on all
Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of acceleration
(including any Securities required to have been purchased on the Purchase
Date pursuant to an Offer to purchase made by the Company) and any interest
thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest, including Special Interest, and principal
(and premium, if any) at a rate of 8 7/8% per annum, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
51
(2) all Events of Default with respect to the Securities, other than
the non-payment of the principal of Securities which have become due solely
by such declaration of acceleration, have been cured or waived as provided
in Section 4.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 4.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been purchased pursuant to an Offer to purchase
made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
If an Event of Default with respect to the Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 4.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same in accordance
52
with Section 4.06 hereof; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 5.07. The Trustee is allowed to participate as a Member, voting or
otherwise, of any official committee of creditor approved in such matter.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 4.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 4.06. Application of Money Collected.
Any money or other property collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money or other property on
account of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
5.07; and
SECOND: Subject to Article Eleven, to the payment of the amounts then
due and unpaid for principal of and any premium and interest on the
Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
(and premium, if any) and interest, respectively.
Section 4.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
53
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities;
it being understood and intended that not one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 4.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 2.12) interest on such Security on the respective Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date or in the case of an Offer to Purchase made by the Company and
required to be accepted as to such Security, on the Purchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 4.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 4.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 2.07, no right or
54
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 4.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Subject to Section 4.07, every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 4.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities 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 Securities,
provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 4.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities, upon written notice to the Trustee and the Company, may
on behalf of the Holders of all the Securities waive any past default hereunder
with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to purchase which has been made by the
Company), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no
55
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 4.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Trustee or Holders.
Section 4.15. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or 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, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede pursuant to any such law
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE 5.
----------
THE TRUSTEE
-----------
Section 5.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this 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 this Indenture, but not to verify the contents thereof.
(b) In case an Event of Default has occurred and is continuing of
which a Responsible Officer of the Trustee has actual acknowledge, the Trustee
shall exercise such of the rights and powers vested in by this Indenture, and
use the same degree of care and skill in their
56
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this 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
(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section;
(2) the Trustee shall not be liable for any 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;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in aggregate principal amount of the Outstanding
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this 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 5.02. Notice of Defaults.
If a default occurs hereunder with respect to the Securities of which
the Trustee has notice, the Trustee shall give the Holders notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
4.01(4), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
Section 5.03. Certain Rights of Trustee.
Subject to the provisions of Section 5.01:
(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, other evidence of
57
indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel 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, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) the Trustee shall not 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,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its sole discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians and nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder; and
(h) the rights and protections afforded to the Trustee under this
Section 5.03 shall be afforded to the Paying Agent, Security Registrar and
Authenticating Agent if the Trustee is acting in such capacity.
Section 5.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee
58
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company, of Securities or the proceeds thereof.
Section 5.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
5.08 and 5.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent, as the case may be.
Section 5.06. Money Held in Trust.
Money held by the Trustee in trust hereunder 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 money received by it hereunder except as
otherwise agreed with the Company.
Section 5.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its gross negligence or bad faith; and
(3) to indemnify the Trustee, its officers, directors, employees and
agents for, and to hold it harmless against, any and all loss, liability,
damage or expense including taxes (excluding income taxes of the Trustee)
incurred without gross negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of enforcing this
Indenture against the Company (including Section 5.07) and of any
litigation, threatened or otherwise, in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section 5.07, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such. The
Trustee's right to receive payments of any amounts under this Section 5.07 shall
not be subordinate to any other obligation or indebtedness of the Company (even
though the Notes may be so subordinated).
59
Section 5.08. Administrative Expense.
The obligations of the Company under this Section 5.08 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the rejection or termination
of this Indenture under bankruptcy law. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities or coupons, and the Securities are hereby
subordinated to such senior claim. If the Trustee renders services and incurs
expenses following an Event of Default under Section 4.01(7) or Section 4.01(8)
hereof, the parties hereto and the Holders by their acceptance of the Securities
hereby agree that such expenses are intended to constitute expenses of
administration under any bankruptcy law.
Section 5.09. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. Further, it is
understood that the Trustee shall be entitled to any and all rights that the
Trustee may have in its individual capacity or any other capacity with respect
to any Indebtedness of the Company, and no provision of this Indenture shall be
construed as to limit or diminish any such right.
Section 5.10. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 5.11. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 5.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 5.11 shall not have been delivered to the Trustee within 30
days after the giving of such notice of
60
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 5.09 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 5.10 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 4.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees. If within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 5.12, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 5.12, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Section 5.12. Acceptance of Appointment by Successor.
61
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
including, without limitation, all monies due and owing to the retiring Trustee,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 5.13. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 5.14. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 5.15. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
2.07, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall
62
at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent reasonable
compensation for its services rendered. If an appointment is made pursuant to
this Section, the Securities may have endorsed thereon, in addition to or in
lieu of the Trustee's certificate of authentication, an alternative certificate
of authentication in the following form:
63
This is one of the Securities described in the within-mentioned
Indenture.
Marine Midland Bank,
As Trustee
By:
----------------------------------------
As Authenticating Agent
By:
----------------------------------------
Authorized Officer
64
ARTICLE 6.
----------
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
-------------------------------------------------
Section 6.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee at
any time, and from time to time as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of the names
and addresses of the Holders as of a date not more than 15 days prior to the
time such list is furnished.
Section 6.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 6.01. The Trustee may
destroy any list furnished to it as provided in Section 6.01 upon receipt of a
new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 6.03. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee in writing when any Securities are listed on any
stock exchange.
Section 6.04. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to the Trust Indenture Act; provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
65
ARTICLE 7.
----------
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
----------------------------------------------------
Section 7.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate or merge with or into (whether or
not the Company is the Surviving Person), or 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:
(a) the Surviving Person is a corporation organized and existing
under the laws of the United States, any state thereof or the District of
Columbia;
(b) the Surviving Person (if other than the Company) assumes by
supplemental indenture in a form reasonably satisfactory to the Trustee all
the obligations of the Company under the Securities and this Indenture;
(c) at the time of and immediately after such Disposition no Default
or Event of Default shall have occurred and be continuing;
(d) except with respect to a merger of the Company with or into Xxxxx
USA that does not result in a Rating Decline, after giving pro forma effect
to the transaction either (1) the Surviving Person would be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Operating Cash Flow Ratio test set forth in Section 9.12
hereof or (2) the Consolidated Operating Cash Flow Ratio of the Surviving
Person would be no less than such ratio for the Company immediately prior
to the transaction; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 7.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer, lease or other disposition
of the properties and assets of the Company substantially as an entirety in
accordance with Section 7.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer, lease
or other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities; provided, however, that the predecessor Company shall not be
relieved from the obligation to pay principal of and interest on the Securities,
except in the
66
case of a transfer, conveyance, sale or other disposition (excluding by lease)
of all of the Company's assets that meets the requirements of Section 7.01
hereof.
ARTICLE 8.
----------
SUPPLEMENTAL INDENTURES
-----------------------
Section 8.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to secure the Securities; or
(5) to establish the form or terms of Securities as permitted by
Section 2.01; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (7)
shall not adversely affect the interests of the Holders in any material
respect; or
(8) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
(9) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
securities in bearer form, registrable or not registrable as to principal,
and with our without interest coupons; or
(10) to delete all or any portion of Section 9.21 hereof with respect
to any series of Securities; or
67
(11) to make any change that does not materially adversely affect the
interests of the Holders of Securities of any series.
Section 8.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or
(2) reduce the principal amount of (or the premium), or interest,
including Special Interest, on, any Securities, or
(3) change the place or currency of payment of principal of (or
premium), or interest on, any Securities, or
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any Securities, or
(5) reduce the above-stated percentage of Outstanding Securities
necessary to modify or amend the Indenture, or
(6) reduce the percentage of aggregate principal amount of
Outstanding Securities necessary for waiver of compliance of certain
covenants, as set forth in Article 4.13 or 9.20 hereof, or
(7) modify any provisions of this Indenture relating to the
modification and amendment of this Indenture or the waiver of past defaults
or covenants, except as otherwise specified herein.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 8.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
68
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 8.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 8.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 8.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article 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. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
Section 8.07. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 8.02, the Company
shall give notice to all Holders of such fact, setting forth in general terms
the substance of such supplemental indenture, in the manner provided in Section
1.06. Any failure of the Company to give such notice, or any defect therein,
shall not in any way impair or affect the validity of any such supplemental
indenture.
Section 8.08. Effect on Senior Indebtedness.
No amendments, supplement or waiver of this Indenture shall adversely
affect the rights of any holder of Senior Debt (including their rights under
Article Eleven) without the consent of such holder.
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ARTICLE 9.
----------
COVENANTS
---------
Section 9.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it shall duly and punctually pay
the principal of (and premium, if any) and interest, including Special Interest,
on the Securities in accordance with the terms of the Securities and this
Indenture.
Section 9.02. Maintenance of Office or Agency.
The Company shall maintain an office or agency in the Borough of
Manhattan, City of New York where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company initially appoints
Marine Midland Bank as Paying Agent and Security Registrar. The Company shall
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 Company terminates the
appointment of a Paying Agent or Security Registrar or otherwise shall fail to
maintain any such required office or agency, the Company shall use its
reasonable best efforts to appoint a successor Paying Agent or Security
Registrar reasonably acceptable to the Trustee. If the Company fails to
maintain a Paying Agent or Security Registrar, the Trustee shall act as such,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. The Company shall forward
copies of all presentations, surrenders, notices and demands to the Trustee
promptly upon their receipt.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, City of New York, for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
Section 9.03. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
shall, on or prior to 11:00 a.m. New York City time on each due date of the
principal of or any premium or interest on any of the Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and any premium and interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and shall promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or any premium or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest, including Special Interest, on any Security and remaining unclaimed
for two years after such principal, premium or interest, including Special
Interest, has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 9.04. Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such officer signing such certificate, that to the best of
such officer's knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this
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Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which
such officer may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of such officers'
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of (and premium, if any) or interest,
including Special Interest, if any, on the Securities are prohibited or if such
event has occurred, a description of the event and what action the Company is
taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the financial statements
delivered pursuant to Section 9.08 shall be accompanied by a written statement
of the Company's independent public accountants (who shall be a firm of
established national reputation reasonably satisfactory to the Trustee) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of Articles Eight or Ten of this Indenture
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any
such violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any officer becoming aware
of (i) any default or Event of Default or (ii) any event of default under any
other mortgage, indenture or instrument as described in Section 4.01(5), an
Officers' Certificate specifying such default, Event of Default or event of
default and what action the Company is taking or proposes to take with respect
thereto.
Section 9.05. Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 9.06. Maintenance of Properties.
The Company shall cause all properties used or useful in the conduct
of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the
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Company, desirable in the conduct of its business or the business of any
Subsidiary of the Company and not disadvantageous in any material respect to the
Holders.
Section 9.07. Payment of Taxes and Other Claims.
The Company shall, or shall cause its Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary of the Company or upon the income,
profits or property of the Company or any Subsidiary of the Company, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary of the Company;
provided, however, that the Company and its Subsidiaries 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 validity is being contested in
good faith by appropriate proceedings.
Section 9.08. Provision of Financial Information.
So long as the Notes are outstanding, whether or not the Company is
required to be subject to Section 13(a) or 15(d) of the Exchange Act, or any
successor provision thereto, the Company shall file with the Commission the
annual reports, quarterly reports and other documents (including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by the Company's
certified independent accountants) which the Company would have been required to
file with the Commission pursuant to such Section 13(a) or 15(d) or any
successor provision thereto if the Company were so required, such documents to
be filed with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to file such
documents if the Company were so required. The Company shall also in any event
(a) within 15 days of each Required Filing Date (i) transmit by mail to all
Holders, as their names and addresses appear in the Security Register, without
cost to such Holders, and (ii) file with the Trustee, in each case, copies of
the annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act or any successor provisions thereto if the Company
were required to be subject to such Sections and (b) if filing such documents by
the Company with the Commission is not permitted under the Exchange Act,
promptly upon written request supply copies of such documents to any prospective
Holder. In addition, the Company shall, for so long as any Securities remain
outstanding, furnish to all Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144(d)(4) under the Securities Act.
Section 9.09. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless (i)
at the time of and immediately after giving effect to the proposed Restricted
Payment, no Default or Event of Default shall have occurred and be continuing,
or would occur as a consequence thereof, (ii) either the Company would (a) at
the time of such Restricted Payment and after giving pro forma effect thereto,
have a Consolidated Adjusted Net Worth exceeding $200 million or (b) be
permitted to incur at least
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$1.00 of additional Indebtedness pursuant to the Consolidated Operating Cash
Flow Ratio test set forth in Section 9.12, and (iii) at the time of and
immediately after giving effect to the proposed Restricted Payment (the value of
any such payment if other than cash, as determined in good faith by the board of
directors of the Company and evidenced by a Board Resolution), the aggregate
amount of all Restricted Payments (including Restricted Payments permitted by
clauses (b), (j), (l) and (m) of the next succeeding paragraph and excluding the
other Restricted Payments permitted by such paragraph) declared or made
subsequent to the Issue Date shall not exceed the sum of (a) 50% of the
aggregate Consolidated Net Operating Income (or, if such aggregate Consolidated
Net Operating Income is a deficit, minus 100% of such deficit) of the Company
for the period (taken as one accounting period) from the first day of the fiscal
quarter that begins after the Issue Date to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment plus (b) 100% of the aggregate
net proceeds, including cash and the fair market value of property other than
cash (as determined in good faith by the board of directors of the Company and
evidenced by a Board Resolution), received by the Company since the Issue Date,
from any Person other than a Subsidiary of the Company as a result of the
issuance of Capital Stock (other than any Disqualified Capital Stock) of the
Company including such Capital Stock issued upon conversion of Indebtedness or
upon exercise of warrants and any contributions to the capital of the Company
(other than Excluded Contributions) received by the Company from any such Person
plus (c) to the extent that any Restricted Investment that was made after the
Issue Date, is sold for cash or otherwise liquidated or repaid for cash, the
cash return of capital with respect to such Restricted Investment (less the cost
of disposition, if any). For purposes of any calculation pursuant to the
preceding sentence which is required to be made within 60 days after the
declaration of a dividend by the Company, such dividend shall be deemed to be
paid at the date of declaration.
The foregoing provisions of this covenant shall not be violated by
reason of (a) the payment of any dividends or distributions payable solely in
shares of the Company's Capital Stock (other than Disqualified Capital Stock) or
in options, warrants or other rights to acquire the Company's Capital Stock
(other than Disqualified Capital Stock), (b) the payment of any dividend within
60 days after the date of declaration thereof if, at such date of declaration,
such payment complied with the provisions described above, (c) the payment of
cash dividends or the making of loans or advances to Xxxxx USA after October 1,
2002, in an amount sufficient to enable Xxxxx USA to make cash payments of
interest or dividends required to be made in respect of the Exchangeable
Preferred Stock or the Exchange Debentures in accordance with the terms thereof
in effect on the date of this Indenture, (d) the payment of cash dividends or
the making of loans or advances in an amount sufficient to enable Xxxxx USA to
make payments required to be made in respect of the 10/7//8% Notes in accordance
with the terms thereof in effect on the date of this Indenture, (e) the
retirement of any shares of the Company's Capital Stock in exchange for, or out
of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of, other shares of its Capital Stock (other than
Disqualified Capital Stock) or options, warrants or other rights to purchase the
Company's Capital Stock (other than Disqualified Capital Stock) and the
declaration and payment of dividends on such new Capital Stock in an aggregate
amount no greater than the amount of dividends declarable and payable on such
retired Capital Stock immediately prior to such retirement, (f) the Chevron
Payment, (g) the AOC Payment, (h) the Gulf Payments, (i) other Restricted
Payments in an aggregate amount not to
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exceed $50 million, (j) the making of any payment in redemption of Capital Stock
of the Company or Xxxxx USA or options to purchase such Capital Stock granted to
officers or employees of the Company or Xxxxx USA pursuant to any stock option,
stock purchase or other stock plan approved by the board of directors of the
Company or Xxxxx USA in connection with the severance or termination of officers
or employees not to exceed $8 million per annum or the payment of cash dividends
or the making of loans or advances to Xxxxx USA to permit it to make such
payments, (k) the declaration and payment of dividends to holders of any class
or series of preferred stock of the Company and its Restricted Subsidiaries
issued in accordance with Section 9.12, (l) the payment of dividends on the
Company's Common Stock, following the first public offering of the Company's or
Xxxxx USA's Common Stock after the Issue Date, of up to 6% per annum of the net
proceeds received by the Company in such public offering or the payment of funds
to Xxxxx USA in amounts necessary to permit Xxxxx USA to make such payments to
the extent the proceeds of such offering were contributed to the equity capital
of the Company; (m) so long as no Default or Event of Default shall have
occurred and be continuing (or would result therefrom), the payment to Xxxxx USA
(in the form of dividends, loans, advances or otherwise) of 100% of the proceeds
of Indebtedness incurred pursuant to clause (xv) of the definition of "Permitted
Indebtedness" to redeem, repurchase, defease or otherwise acquire or retire for
value the 10/7//8% Notes; provided, however, that at the time of such
redemption, repurchase, defeasance or other acquisition or retirement for value,
the Consolidated Operating Cash Flow Ratio of the Company, after giving effect
to the incurrence of Indebtedness in connection therewith, would be greater than
1.75 to 1.0; (n) the payment of dividends or the making of loans or advances by
the Company to Xxxxx USA in an amount not to exceed $2 million in any fiscal
year for costs and expenses incurred by Xxxxx USA in its capacity as a holding
company or for services rendered to the Company; (o) Restricted Investments not
to exceed at any one time an aggregate of $75 million; and (p) Restricted
Investments made with Excluded Contributions.
The board of directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation would not cause
a Default or Event of Default; provided that, in no event shall the business
currently operated by the Company or Xxxxx USA be transferred to or held by an
Unrestricted Subsidiary, unless after giving pro forma effect to such transfer
the Company could have incurred an additional $1.00 of Indebtedness pursuant to
the Consolidated Operating Cash Flow Ratio test set forth in Section 9.12. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated shall be deemed to be Restricted Payments at the
time of such designation and shall reduce the amount available for Restricted
Payments under the first paragraph of this Section 9.09. All such outstanding
Investments shall be deemed to constitute Investments in an amount equal to the
greatest of (x) the net book value of such Investments at the time of such
designation, (y) the fair market value of such Investments at the time of such
designation, and (z) the original fair market value of such Investments at the
time they were made. Such designation shall only be permitted if such Restricted
Payment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
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Section 9.10. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company (other than a Securitization Special Purpose Entity) to, create
or otherwise cause or suffer to exist or become effective, any consensual
encumbrance or restriction which, by its terms, restricts the ability of any
Restricted Subsidiary of the Company (other than a Securitization Special
Purpose Entity) to (i) pay dividends or make any other distributions on any such
Restricted Subsidiary's Capital Stock or pay any Indebtedness owed to the
Company or any Restricted Subsidiary of the Company, (ii) make any loans or
advances to the Company or any Restricted Subsidiary of the Company, or (iii)
transfer any of its property or assets to the Company or any Restricted
Subsidiary of the Company, except for, in the case of clauses (i), (ii) and
(iii) above, any restrictions (a) existing under this Indenture and any
restrictions existing or created on the Issue Date pursuant to any agreement
relating to Existing Indebtedness of the Company or any Restricted Subsidiary,
(b) pursuant to an agreement relating to Indebtedness incurred by such
Restricted Subsidiary prior to the date on which such Restricted Subsidiary was
acquired by the Company and outstanding on such date and not incurred in
anticipation of becoming a Restricted Subsidiary, (c) imposed by virtue of
applicable corporate law or regulation and relating solely to the payment of
dividends or distributions to stockholders, (d) with respect to restrictions of
the nature described in clause (iii) above, included in a contract entered into
in the ordinary course of business and consistent with past practices that
contains provisions restricting the assignment of such contract, (e) pursuant to
an agreement effecting a renewal, extension, refinancing, refunding or
replacement of Indebtedness referred to in (a) or (b) above; provided, however,
that the provisions contained in such renewal, extension, refinancing, refunding
or replacement agreement relating to such encumbrance or restriction, taken as a
whole, are not materially more restrictive than the provisions contained in the
agreement the subject thereof, as determined in good faith by the board of
directors, or (f) which shall not in the aggregate cause the Company not to have
the funds necessary to pay the principal of, premium, if any, or interest,
including Special Interest, on the Notes at their Stated Maturity.
Section 9.11. Limitation on Transactions with Shareholders and Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, directly or indirectly, conduct any business or enter into
any transaction or series of similar transactions (including, without
limitation, the purchase, sale, transfer, lease or exchange of any property or
the rendering of any service) with (i) any direct or indirect holder of more
than 5% of any class of Capital Stock of the Company or of any Restricted
Subsidiary of the Company (other than transactions between or among the Company
and/or its Restricted Subsidiaries except for Restricted Subsidiaries owned in
any part by the Principal Shareholders) or (ii) any Affiliate of the Company
(other than transactions between or among the Company and/or its Restricted
Subsidiaries except for Restricted Subsidiaries owned in any part by the
Principal Shareholders) (each of the foregoing, a "Shareholder/Affiliate
Transaction") unless the terms of such business, transaction or series of
transactions (a) are set forth in writing and (b) are as favorable to the
Company or such Restricted Subsidiary in all material respects as terms that
would be obtainable at the time for a comparable transaction or series of
similar transactions in arm's-length dealings with a Person which is not such a
stockholder or Affiliate and, if such transaction or series of transactions
involves payment for services of such a stockholder or Affiliate, (x) for
amounts
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greater than $10 million and less than $25 million per annum, the Company shall
deliver an Officers' Certificate to the Trustee certifying that such
Shareholder/Affiliate Transaction complies with clause (b) above or (y) for
amounts equal to or greater than $25 million per annum, then (A) a majority of
the disinterested members of the board of directors shall in good faith
determine that such payments are fair consideration for the services performed
or to be performed (evidenced by a Board Resolution) or (B) the Company must
receive a favorable opinion from a nationally recognized investment banking firm
chosen by the Company or, if no such investment banking firm is in a position to
provide such opinion, a similar firm chosen by the Company (having expertise in
the specific area which is the subject of the opinion), that such payments are
fair consideration for the services performed or to be performed (a copy of
which shall be delivered to the Trustee); provided that the foregoing
requirements shall not apply to (i) Shareholder/Affiliate Transactions involving
the purchase or sale of crude oil in the ordinary course of the Company's
business, so long as such transactions are priced in line with the market price
of a crude benchmark and the pricing of such transactions are equivalent to the
pricing of comparable transactions with unrelated third parties; and provided
further that the Gulf Payments shall not be deemed a Shareholder/Affiliate
Transaction, (ii) Restricted Payments permitted by the provisions of this
Indenture described in Section 9.09, (iii) payments made in connection with the
Blackstone Transaction, including fees to Blackstone, (iv) payment of annual
management, consulting, monitoring and advisory fees and related expenses to
Blackstone and its Affiliates, (v) payment of reasonable and customary fees paid
to, and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Restricted Subsidiary, (vi) payments by the
Company or any of its Restricted Subsidiaries to Blackstone and its Affiliates
made for any financial advisory, financing, underwriting or placement services
or in respect of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures which payments are
approved by a majority of the board of directors of the Company in good faith,
(vii) payments or loans to employees or consultants which are approved by a
majority of the board of directors of the Company in good faith, (viii) any
agreement in effect on the Issue Date and any amendment thereto (so long as any
such amendment is not disadvantageous to the holders of the Notes in any
material respect) or any transaction contemplated thereby, or (ix) any
stockholder agreement or registration rights agreement to which the Company is a
party on the Issue Date and any similar agreements which it may enter into
thereafter; provided that the performance by the Company or any of its
Restricted Subsidiaries of obligations under any future amendment or under such
a similar agreement entered into after the Issue Date shall only be permitted by
this clause (ix) to the extent that the terms of any such amendment or new
agreement are not disadvantageous to the holders of the Notes in any material
respect.
Section 9.12. Limitation on Indebtedness.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, incur any Indebtedness (including Acquired Debt)
other than (i) the Notes, the Senior Notes, and obligations outstanding under
the Loan Agreement and (ii) Permitted Indebtedness, unless after giving effect
to the incurrence of such Indebtedness and the receipt and application of the
proceeds therefrom, the Company's Consolidated Operating Cash Flow Ratio is
greater than 2 to 1. Notwithstanding the foregoing, the Company's Unrestricted
Subsidiaries may incur Non-Recourse Debt; provided, however, that if any such
Indebtedness ceases to be Non-Recourse
77
Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an
incurrence of Indebtedness by a Restricted Subsidiary of the Company.
Section 9.13. Limitation on Issuance of Guarantees of Indebtedness.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to guarantee or secure the payment of any Indebtedness of the
Company unless such Restricted Subsidiary simultaneously executes and delivers
supplemental indentures to this Indenture providing for the guarantee or
security of the payment of the Notes by such Restricted Subsidiary (other than
the grant of security interests in cash and cash equivalents, receivables and
product inventories to secure obligations under the Credit Agreement). If the
Indebtedness to be guaranteed is subordinated to the Notes, the guarantee or
security of such Indebtedness shall be subordinated to the guarantee or security
of the Notes to the same extent as the Indebtedness to be guaranteed is
subordinated to the Notes under this Indenture. Notwithstanding the foregoing,
any such guarantee or security by a Restricted Subsidiary of the Notes shall
provide by its terms that it shall be automatically and unconditionally released
and discharged upon either (i) the release or discharge of such guarantee or
security of payment of such other Indebtedness, except a discharge by or as a
result of payment under such guarantee or security, or (ii) any sale, exchange
or transfer, to any Person not an Affiliate of the Company, of all of the
Company's Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary, which sale, exchange or transfer is made in compliance
with the applicable provision of this Indenture.
Section 9.14. Other Agreements.
The Company shall not, and shall not permit any Subsidiary of the
Company to, enter into or become a party (including, without limitation, as an
assignee or successor) to any agreement (including, without limitation, a
refinancing or refunding of the Credit Agreement) that would conflict with this
Indenture.
Section 9.15. Limitation on Liens.
The Company shall not, directly or indirectly, create, incur, assume
or suffer to exist any Lien (other than Permitted Liens) on any asset now owned
or hereafter acquired, or on any income or profits therefrom, or assign or
convey any right to receive income therefrom to secure any Indebtedness which is
pari passu with or subordinate in right of payment to the Notes, unless the
Notes are secured equally and ratably simultaneously with or prior to the
creation, incurrence or assumption of such Lien for so long as such Lien exists;
provided, that in any case involving a Lien securing Indebtedness which is
subordinated in right of payment to the Notes, such Lien is subordinated to the
Lien securing the Notes to the same extent that such subordinated debt is
subordinated to the Notes.
Section 9.16. Limitation on Certain Asset Dispositions.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, make any Asset Disposition unless (i) the Company or such
Restricted Subsidiary receives consideration at the time of such disposition (or
in the case of a lease, over the term of such lease) at least equal to the fair
market value of the shares or assets disposed of (which shall
78
be as determined in good faith by the Company), and (ii) at least 75% of the
consideration for such disposition consists of cash or Cash Equivalents;
provided that the following shall be deemed to be cash for purposes of this
covenant: (1) the amount of any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet or in the notes thereto) of
the Company or such Restricted Subsidiary (other than liabilities that are by
their terms subordinated to the Notes) that are assumed by the transferee of any
such assets, and (2) any notes or other obligations received by the Company or
such Restricted Subsidiary from a transferee that are converted by the Company
or such Restricted Subsidiary into cash within 180 days after such Asset
Disposition; provided, further, that the 75% limitation referred to above in
clause (ii) shall not apply to (x) any disposition of assets in which the cash
portion of such consideration received therefor on an after-tax basis,
determined in accordance with the foregoing proviso, is equal to or greater than
what the after-tax net proceeds would have been had such transaction complied
with the aforementioned 75% limitation, (y) any disposition of assets (other
than the Port Xxxxxx Refinery) in exchange for assets of comparable fair market
value related to the Principal Business of the Company, provided that in any
such exchange of assets of the Company or a Restricted Subsidiary with a fair
market value in excess of $20 million occurring when Blackstone fails to hold,
directly or indirectly, 30% or more of the total voting power of all classes of
stock of the Company, the Company shall obtain an opinion or report from a
nationally recognized investment banking firm, valuation expert or accounting
firm confirming that the assets received by the Company and such Restricted
Subsidiary in such exchange have a fair market value at least equal to the
assets so exchanged or (z) any disposition of Securitization Program Assets to
any Securitization Special Purpose Entity in exchange for Indebtedness of,
procurement of letters of credit and similar instruments by, or equity or other
interests in, such Securitization Special Purpose Entity.
Within 360 days of the later of (a) the receipt of the Net Available
Proceeds and (b) the date of such Asset Disposition, the Company may elect to
(i) apply the Net Available Proceeds from such Asset Disposition to permanently
redeem or repay Indebtedness of the Company or any Restricted Subsidiary, other
than Indebtedness of the Company which is subordinated to the Notes, or (ii)
apply the Net Available Proceeds from such Asset Disposition to invest in assets
related to the Principal Business of the Company or Capital Stock of any Person
primarily engaged in the Principal Business if, as a result of such acquisition,
such Person becomes a Restricted Subsidiary. Pending the final application of
any such Net Available Proceeds, the Company may temporarily invest such Net
Available Proceeds in any manner permitted by this Indenture. Any Net Available
Proceeds from an Asset Disposition not applied or invested as provided in the
first sentence of this paragraph shall be deemed to constitute "Excess
Proceeds."
As soon as practical, but in no event later than 10 Business Days
after any date (an "Asset Disposition Trigger Date") that the aggregate amount
of Excess Proceeds exceeds $25 million, the Company shall commence an Offer (as
described in Section 10.09) to purchase the maximum principal amount of Notes
that may be purchased out of the Excess Proceeds, and to purchase or prepay the
maximum amount of other Indebtedness of Xxxxx USA or the Company having similar
rights to be so prepaid or purchased out of such Excess Proceeds, in each case
at an Offer price in cash in an amount equal to 100% of the principal amount
thereof, plus accrued and unpaid interest, including Special Interest, to the
date of purchase. To the extent that any
79
Excess Proceeds remain after completion of an Offer, the Company may use the
remaining amount for general corporate purposes. Upon completion of such Offer,
the amount of Excess Proceeds shall be reset to zero.
Section 9.17. Restrictions on Senior Subordinated Indebtedness.
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt and senior in any respect in right of
payment to the Notes.
Section 9.18. Restrictions on Secured Indebtedness.
The following provision shall apply only upon and after the occurrence
of an Investment Grade Rating Event. If the Company shall incur, issue, assume
or guarantee any Indebtedness secured by a Lien on any Principal Property of the
Company or on any share of stock or Indebtedness of any Restricted Subsidiary
(other than a Securitization Special Purpose Entity), the Company shall secure
the Notes equally and ratably with (or, at the Company's option, prior to) such
secured Indebtedness so long as such Indebtedness shall be so secured, unless
the aggregate amount of all such secured Indebtedness, together with all
Attributable Indebtedness of the Company with respect to any sale and leaseback
transactions involving Principal Properties (with the exception of such
transactions which are excluded as described in clauses (i) through (v) in
Section 9.19 below), would not exceed 10% of Consolidated Net Tangible Assets.
The above restriction does not apply to, and there shall be excluded from
secured Indebtedness in any computation under such restriction, Indebtedness
secured by: (i) Liens on property of, or on any share of stock or Indebtedness
of, any corporation existing at the time such corporation becomes a Restricted
Subsidiary and Liens on any property acquired from a corporation which is merged
with or into the Company or a Subsidiary, (ii) Liens in favor of the Company;
(iii) Liens in favor of governmental bodies to secure progress, advance or other
payments; (iv) Liens upon any property acquired after the date of this
Indenture, securing the purchase price thereof or created or incurred
simultaneously with (or within 270 days after) such acquisition to finance the
acquisition of such property or existing on such property at the time of such
acquisition, or Liens on improvements after such date, in each case subject to
certain conditions and provided that the principal amount of the obligation or
indebtedness secured by such Lien shall not exceed 100% of the cost or fair
value (as determined in good faith by the Company), whichever shall be lower, of
the property at the time of the acquisition, construction or improvement
thereof; (v) Liens securing industrial revenue or pollution control bonds; (vi)
Liens arising out of any final judgment for the payment of money aggregating not
in excess of $25 million which remains unstayed, in effect and unpaid for a
period of 60 consecutive days or Liens arising out of any judgments which are
being contested in good faith; (vii) Permitted Liens in existence on the date of
the Investment Grade Rating Event; (viii) Liens to secure obligations arising
from time to time under the Credit Agreement including Guaranties thereof; or
(ix) any extension, renewal, or replacement of any Lien referred to in the
foregoing clauses (i) through (viii) inclusive.
Section 9.19. Restrictions on Sales and Leasebacks.
80
The following provision shall apply only upon and after the occurrence
of an Investment Grade Rating Event. The Company may not enter into any sale
and leaseback transaction involving any Principal Property, unless the aggregate
amount of all Attributable Indebtedness of the Company with respect to such
transaction plus all secured Indebtedness (with the exception of secured
Indebtedness which is excluded as described in clauses (i) through (ix) in
Section 9.18 above) would not exceed 10% of Consolidated Net Tangible Assets.
This restriction does not apply to, and there shall be excluded from
Attributable Indebtedness in any computation under such restriction, any sale
and leaseback transaction if: (i) the lease is for a period, including renewal
rights, not in excess of three years; (ii) the sale of the Principal Property is
made within 270 days after its acquisition, construction or improvements; (iii)
the lease secures or relates to industrial revenue or pollution control bonds;
(iv) the transaction is between the Company and a Restricted Subsidiary; or (v)
the Company, within 270 days after the sale is completed, applies to the
retirement of Indebtedness of the Company or a Restricted Subsidiary, or to the
purchase of other property which shall constitute a Principal Property, an
amount not less than the greater of (1) the net proceeds of the sale of the
Principal Property leased or (2) the fair market value (as determined by the
Company in good faith) of the Principal Property leased. The amount to be
applied to the retirement of Indebtedness shall be reduced by (x) the principal
amount of any debentures or notes (including the Notes) of the Company or a
Restricted Subsidiary surrendered within 270 days after such sale to the trustee
for retirement and cancellation, (y) the principal amount of Indebtedness, other
than the items referred to in the preceding clause (x), voluntarily retired by
the Company or a Restricted Subsidiary within 270 days after such sale and (z)
associated transaction expenses.
Section 9.20. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 9.06 to 9.19, inclusive, with
respect to the Securities if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect; provided,
however, with respect to an Offer to purchase as to which an Offer has been
mailed, no such waiver may be made or shall be effective against any Holder
tendering Securities pursuant to such Offer, and the Company may not omit to
comply with the terms of such Offer as to such Holder.
Section 9.21. Effect of Investment Grade Rating.
Notwithstanding the foregoing, upon the occurrence of an Investment
Grade Rating Event, Sections 7.01(d), and 7.01(e), 9.09, 9.10, 9.11, 9.12, 9.15,
and 9.16 shall be of no further force or effect and shall cease to apply to the
Company and, in lieu thereof, Sections 9.18 and 9.19 shall take effect. The
Company shall promptly notify the Trustee of the occurrence of any Investment
Grade Rating Event.
81
ARTICLE 10.
-----------
REDEMPTION OF SECURITIES
------------------------
Section 10.01. Right of Redemption.
Securities of any series which are redeemable at the election of the
Company before their Stated Maturity shall be redeemable in accordance with the
terms set forth in the form of Security and in this Article and at the
Redemption Prices specified in the form of Security (except as otherwise
specified as contemplated by Section 2.01).
Section 10.02. Applicability of Article.
Redemption of the Securities at the election of the Company, as
permitted by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
Section 10.03. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 10.01 shall be evidenced by a Board Resolution, which Board Resolution
shall be delivered to the Trustee at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee). In case of any redemption at the election of the Company of less than
all the Securities, the Company shall notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities to be redeemed upon
delivery of the Board Resolution related to such redemption.
Section 10.04. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by lot or by such method as the Trustee shall deem fair
and appropriate (and in a manner that complies with applicable legal and
securities exchange requirements, if any) and which may provide for the
selection for redemption of portions (equal to $1,000 or any integral multiple
thereof) of the principal amount of Securities of a denomination larger than
$1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
In the event that the Company is required to make an Offer to purchase
pursuant to Sections 10.09 or 9.16 and the amount available for such Offer is
not an integral multiple of $1,000, the Trustee shall promptly refund to the
Company any remaining excess proceeds, which shall be less than $1,000.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities
82
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
Section 10.05. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof to be redeemed and
that, unless the Company defaults in making the redemption payment,
interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
(7) if any of the Securities are being redeemed in part, that on or
after the redemption date a new Security in principal amount equal to the
unredeemed portion thereof will be issued,
(8) the provision of the Securities pursuant to which the Securities
called for redemption are being redeemed,
(9) the aggregate principal amount of Securities that are being
redeemed, and
(10) the CUSIP number of the Securities that are being redeemed.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 10.06. Deposit of Redemption Price.
Prior to 11:00 a.m. New York City time on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 9.03) an amount of money
83
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
Section 10.07. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall not bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price together with accrued interest to
the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 2.12.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.08. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, 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 Security so surrendered.
Section 10.09. Offer to Purchase.
Within 30 days following a Change of Control resulting in a Rating
Decline and on any Asset Disposition Trigger Date, the Company shall mail to
each holder of Securities, at such holder's registered address a notice stating:
(i) that an offer (an "Offer") is being made as a result of a Change of Control
or one or more Asset Dispositions, the length of time the Offer shall remain
open, and the maximum aggregate principal amount of Securities that shall be
accepted for payment pursuant to such Offer, (ii) the purchase price, the amount
of accrued and unpaid interest (including Special Interest) as of the purchase
date, and the purchase date (the "Purchase Date"), (iii) in the case of a Change
of Control, the circumstances and material facts regarding such Change of
Control, to the extent known to the Company (including, but not limited to,
information with respect to pro forma and historical financial information after
giving effect to such Change of Control, and information regarding the Person or
Persons acquiring control) and (iv) such other information required by this
Indenture and applicable laws and regulations.
84
On the Purchase Date for any Offer, the Company shall (1) in the case
of an Offer resulting from a Change of Control, accept for payment all
Securities tendered pursuant to such Offer and, in the case of an Offer
resulting from one or more Asset Dispositions, accept for payment the maximum
principal amount of Securities tendered pursuant to such Offer that can be
purchased out of Excess Proceeds from such Asset Dispositions, which amount
shall equal the product of (a) the amount of such Excess Proceeds and (b) a
fraction whose numerator is the aggregate amount of all obligations owing under
Securities tendered pursuant to such offering and whose denominator is the sum
of the aggregate amount of all obligations owing under Securities tendered
pursuant to such offering and the aggregate amount of all obligations owing
under other Indebtedness of Xxxxx USA or the Company tendered pursuant to
similar rights to prepayment or repurchase, (2) deposit with the Paying Agent
the aggregate purchase price of all Securities accepted for payment and any
accrued and unpaid interest, including Special Interest, on such Securities as
of the Purchase Date, and (3) deliver or cause to be delivered to the Trustee
all Securities tendered pursuant to the Offer. If less than all Securities
tendered pursuant to any Offer are accepted for payment by the Company for any
reason, selection of the Securities to be purchased shall be in compliance with
the requirements of the principal national securities exchange, if any, on which
the Securities are listed or, if the Securities are not so listed, by lot or by
such method as the Trustee shall deem fair and appropriate; provided that
Securities accepted for payment in part shall only be purchased in integral
multiples of $1,000. The Paying Agent shall promptly mail to each holder of
Securities accepted for payment an amount equal to the Purchase price for such
Securities plus any accrued and unpaid interest, including Special Interest
thereon, the Trustee shall promptly authenticate and mail to such holder of
Securities accepted for payment in part new Securities equal in principal amount
to any unpurchased portion of the Securities, and any Securities not accepted
for payment in whole or in part shall be promptly returned to the holder
thereof. On and after a Purchase Date, interest shall cease to accrue on the
Securities accepted for payment. The Company shall announce the results of the
Offer to holders of the Securities on or as soon as practicable after the
Purchase Date.
The Company shall comply with all applicable requirements of Rule
14e-1 under the Exchange Act and all other applicable securities laws and
regulations thereunder, to the extent applicable, in connection with any Offer.
Other than as specifically provided in this Section 10.09, any
purchase pursuant to this Section 10.09 shall be made pursuant to the provisions
of Sections 10.01 through 10.08 hereof.
ARTICLE 11. SUBORDINATION
Section 11.01. Agreement to Subordinate
The Company agrees, and each Securityholder by accepting a Security
agrees, that the indebtedness evidenced by the Securities is subordinated in
right of payment, to the extent and in the manner provided in this Article, to
the prior payment in full in cash of all Senior Debt (whether outstanding on the
date hereof or thereafter incurred), and that the subordination is for the
benefit of the holders of Senior Debt. The Trustee's fees, expenses and
indemnity payments, as provided for in Section 5.07 hereof, are not to be
subordinated under this Section 11.01.
85
Section 11.02. Certain Definitions
"Debt" of any person means any indebtedness, contingent or otherwise,
in respect of borrowed money (whether or not the recourse of the lender is to
the whole of the assets of such person or only to a portion thereof), or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit, or representing the balance deferred and unpaid of the purchase price of
any property or interest therein, except any such balance that constitutes a
trade payable, if and to the extent such indebtedness would appear as a
liability upon a balance sheet of such person prepared on a consolidated basis
in accordance with generally accepted accounting principles.
"Representative" means the indenture trustee or other trustee, agent
or representative for an issue of Senior Debt.
"Senior Debt" means (i) all Indebtedness outstanding under the
Credit Agreement and the Loan Agreement, (ii) Indebtedness represented by the
Senior Notes, the 10 1/2% Notes and the 9 1/2% Notes, (iii) any other
Indebtedness permitted to be incurred by the Company under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Securities and (iv) all Obligations with respect to the
foregoing. Notwithstanding anything to the contrary in the foregoing, Senior
Debt will not include (v) Indebtedness represented by preferred stock, (w) any
liability for federal, state, local or other taxes owed or owing by the Company,
(x) any Indebtedness of the Company to any of its Subsidiaries or other
Affiliates, (y) any trade payables or (z) any Indebtedness that is incurred in
violation of this Indenture; provided, however, that any Indebtedness incurred
under the Credit Agreement, in respect of which the lenders or the agent
thereunder receive from the Company a representation that such Indebtedness is
Senior Debt for all purposes under this Indenture, shall be Senior Debt for all
purposes under this Indenture notwithstanding this clause (z).
For purposes of this Article 11, a distribution may consist of cash,
securities or other property, by set-off or otherwise.
Section 11.03. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, in
an assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive payment in
full in cash of all Obligations due in respect of such Senior Debt (including
interest accruing after the commencement of any such proceeding) before
Securityholders shall be entitled to receive any payment of principal of or
interest on Securities (except that Securityholders may receive (a) Permitted
Junior Securities and (b) payments and other distributions made from any
defeasance trust created pursuant to Section 13.01 hereof); and
86
(2) until all Obligations with respect to the Senior Debt (including
interest accruing after the commencement of any such proceeding) are paid in
full in cash, any distribution to which Securityholders would be entitled but
for this Article shall be made to holders of Senior Debt as their interests may
appear (except that Securityholders may receive (a) Permitted Junior
Securities and (b) payments and other distributions made from any defeasance
trust created pursuant to Section 13.01 hereof.
Section 11.04. Default on Designated Senior Debt
---------------------------------
The Company may not make any payment or distribution in respect of
Obligations with respect to the Securities and may not acquire any Securities
for cash or property (other than capital stock of the Company and Permitted
Junior Securities and (b) payments and other distributions made from any
defeasance trust created pursuant to Section 13.01 hereof) until all principal
and other Obligations with respect to the Senior Debt have been paid in full if:
(1) a default in the payment of any principal or other
Obligations with respect to Designated Senior Debt occurs and is continuing
beyond any applicable grace period in the agreement, indenture or other
document governing such Designated Senior debt; or
(2) a default, other than a payment default, on Designated
Senior Debt occurs and is continuing that permits holders of the Designated
Senior Debt to accelerate its maturity and the Trustee receives a notice of
such default (a "Payment Blockage Notice") from a Person who may give it
pursuant to Section 11.12 hereof. If the Trustee receives any such Payment
Blockage Notice, no subsequent Payment Blockage Notice shall be effective
for purposes of this Section unless and until at least 360 days shall have
elapsed since the effectiveness of the immediately prior Payment Blockage
Notice. No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice unless such
default shall have been waived for a period of not less than 180 days.
The Company shall resume payments on and distributions in respect of
the Securities and may acquire them upon the earlier of:
(a) the date the default is cured or waived, or
(b) in the case of a default referred to in Section
11.04(2) hereof, 179 days pass after the notice is received if the maturity
of such Designated Senior Debt has not been accelerated,
if this Article otherwise permits the payment, distribution or acquisition at
that time.
Section 11.05. Acceleration of Securities.
---------------------------
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
87
Section 11.06. When Distribution Must Be Paid Over
-----------------------------------
In the event that the Company shall make any payment to the Trustee or
any Securityholder of any Obligations with respect to the Securities at a time
when the Trustee or such Securityholder has actual knowledge that such payment
is prohibited by Section 11.04, such payment shall be held by the Trustee or
such Securityholder, in trust for the benefit of, and shall be paid forthwith
over and delivered to, the holders of Senior Debt (pro rata as to each of such
holders on the basis of the respective amounts of Senior Debt held by them) or
their Representative or the trustee under this indenture or other agreement (if
any) pursuant to which Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all Obligations with
respect to Senior Debt remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.
Section 11.07. Notice by Company
-----------------
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Securities to violate this Article, but failure to give such
notice shall not affect the subordination of the Securities to the Senior Debt
provided in this Article. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 5.07.
Section 11.08. Subrogation
-----------
After all Senior Debt is paid in full and until the Securities are
paid in full, Securityholders shall be subrogated to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt to the extent
that distributions otherwise payable to the Securityholders have been applied to
the payment of Senior Debt. A distribution made under this Article to holders
of Senior Debt which otherwise would have been made to Securityholders is not,
as between the Company and Securityholders, a payment by the Company on
Securities.
Section 11.09. Relative Rights.
---------------
This Article defines the relative rights of Securityholders and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their terms;
(2) affect the relative rights of Securityholders and creditors
of the Company other than their rights in relation to holders of Senior
Debt; or
(3) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default or Event of Default, subject to the
rights of holders of Senior Debt to receive distributions otherwise payable
to Securityholders.
88
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still a Default or Event
of Default.
Section 11.10. Subordination May Not Be Impaired by Company
--------------------------------------------
No right of any holder of Senior Debt to enforce the subordination of
the indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
Section 11.11. Distribution or Notice to Representative
----------------------------------------
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Section 11.12. Rights of Trustee and Paying Agent.
----------------------------------
The Trustee or Paying Agent may continue to make payments on the
Securities until it receives written notice of facts that would cause a payment
of any Obligations with respect to the Securities to violate this Article. Only
the Company, a Representative or a holder of an issue of Senior Debt that has no
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights.
Section 11.13. Trustee Not Charged with Knowledge of Prohibition.
-------------------------------------------------
Notwithstanding the provisions of this Article or any other provision
of this Indenture, but subject to the provisions of Section 5.01 as between the
Holders of Securities and the Trustee, neither the Trustee nor any Paying Agent
shall be charged with knowledge of any facts which would prohibit the making of
any payment of moneys to or by the Trustee or any such Paying Agent, unless and
until the Trustee or such Paying Agent shall have received written notice
thereof at its Corporate Trust Office from the Company or any holder of Senior
Debt or the trustee or representative of any holder of such Senior Debt on his
behalf; and, prior to the receipt of any such written notice, the Trustee and
such Paying Agent shall be entitled to assume that no such facts exist. If the
Trustee or Paying Agent, as the case may be, shall not have received, at least
two Business Days prior to the date upon which by the terms hereof any such
moneys may become payable for any purpose (including, without limitation, the
payment of the principal of, premium, if any, or the interest on any Security)
with respect to such moneys, the notice provided for in this Section, then,
anything herein contained to the contrary notwithstanding, the Trustee and such
Paying Agent, as the case may be, shall have full power and authority to receive
such moneys and to apply the same to the purpose for which they were received
and shall not be affected by any notice to the contrary which may be received by
it within two Business Days prior to such date.
Section 11.14. Trustee Not Fiduciary for Holders of Senior Debt.
------------------------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mistakenly pay
89
over or distribute to Holders of Securities or to the Company or to any other
Person cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations
with respect to holders of Senior Debt shall be read into this Indenture against
the Trustee.
ARTICLE 12.
-----------
CHANGE OF CONTROL TRIGGERING EVENT
----------------------------------
Section 12.01. Change of Control Triggering Event.
----------------------------------
In the event that there shall occur a Change of Control Triggering
Event, then the Company shall make an Offer in accordance with Section 10.09
hereof to purchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Securities at a purchase price equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest, including
Special Interest to the date of purchase.
ARTICLE 13.
-----------
DEFEASANCE AND COVENANT DEFEASANCE
----------------------------------
Section 13.01. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may at its option by Board Resolution, at any time, elect
to have either Section 13.02 or Section 13.03 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
Thirteen.
Section 13.02. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 13.01
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities, on and after
the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 13.05 hereof and the other Sections of this
Indenture referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 13.04 and as more fully set
90
forth in such Section, payments in respect of the principal of (and premium, if
any) and interest, including Special Interest, on such Securities when such
payments are due, (B) the Company's obligations with respect to such Securities
under Article 2 and Section 9.02 hereof, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article Thirteen. Subject
to compliance with this Article Thirteen, the Company may exercise its option
under this Section 13.02 notwithstanding the prior exercise of its option under
Section 13.03.
Section 13.03. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 13.01
applicable to this Section, (i) the Company shall be released from its
obligations under Sections 9.06 through 9.19, inclusive and Section 9.21,
Section 10.09, Article 12, and Article 7 hereof and (ii) the occurrence of an
event specified in Sections 4.01(3), 4.01(4) (with respect to any of Sections
9.06 through 9.19, inclusive) and 9.21, Section 10.09 and Article 12, 4.01(5)
and 4.01(6) shall not be deemed to be an Event of Default (hereinafter,
"covenant defeasance"), and the Securities shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes) and holders of the Securities and the amounts deposited
under Section 13.05 shall cease to be subjected to any obligations to, or the
rights of any holder of Senior Debt. For this purpose, such covenant defeasance
means that the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section,
Clause or Article, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section, Clause or Article or by reason of any
reference in any such Section, Clause or Article to any other provision herein
or in any other document shall not constitute a Default or an Event of Default
under Section 4.01 hereof, but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
13.02 or Section 13.03 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 5.10 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of
91
(premium, if any) and each installment of interest, including Special
Interest, on the Securities on the Stated Maturity of such principal
in accordance with the terms of this Indenture and of such Securities.
For this purpose, "U.S. Government Obligations" means securities that
are (x) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect to
any such U.S. Government Obligation or a specific payment of principal
of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such 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 or the specific payment
of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
(2) In the case of an election under Section 13.02, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred.
(3) In the case of an election under Section 13.03, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit and covenant
defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
4.01(7) and (8) are concerned, at any time during the period ending on
the 90th day after the date of such deposit (it
92
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(6) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of the Trust Indenture Act).
(7) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 13.02 or the covenant defeasance under Section 13.03 (as
the case may be) have been complied with.
(9) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended, or such
trust shall be qualified under such act or exempt from regulation
thereunder.
(10) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the passing of 90 days following
such deposit, the trust funds will not be subject to the effect of any
proceeding or any bankruptcy, insolvency, reorganization, or similar
laws regarding creditors' rights generally.
Section 13.05. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 9.03, all
money and U.S. Government obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 13.05, the "Trustee") pursuant to Section 13.04 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, including Special Interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee its officers,
directors, employees and agents against any tax, fee or other charge imposed on
or assessed against the U.S. Government Obligations deposited pursuant to
Section 13.04 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the Outstanding Securities. The indemnity of this Section 13.05 shall
survive the termination of this Indenture or the earlier resignation or removal
of the Trustee.
93
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 13.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 13.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 13.02 or 13.03 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Thirteen until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 13.02 or 13.03;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or any applicable interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or the Paying Agent.
94
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
XXXXX REFINING & MARKETING, INC.
By
-------------------------------------
Attest:
-----------------------------------
MARINE MIDLAND BANK
as Trustee
By
-------------------------------------
Authorized Signatory
S-1
TABLE OF CONTENTS
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture
Page
----
PARTIES................................................................... 1
RECITALS OF THE COMPANY................................................... 1
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION....... 1
Section 1.01. Definitions................................................ 1
Section 1.02. Compliance Certificates and Opinions....................... 24
Section 1.03. Form of Documents Delivered to Trustee..................... 24
Section 1.04. Acts of Holders; Record Dates.............................. 25
Section 1.05. Notices, Etc., to Trustee and Company...................... 26
Section 1.06. Notice to Holders; Waiver.................................. 26
Section 1.07. Conflict with Trust Indenture Act.......................... 27
Section 1.08. Effect of Headings and Table of Contents................... 27
Section 1.09. Successors and Assigns..................................... 27
Section 1.10. Separability Clause........................................ 27
Section 1.11. Benefits of Indenture...................................... 27
Section 1.12. Governing Law.............................................. 27
Section 1.13. Legal Holidays............................................. 28
Section 1.14. No Recourse Against Others................................. 28
ARTICLE 2 THE SECURITIES................................................. 28
Section 2.01. Form and Dating; Issuable in Series........................ 28
Section 2.02. Execution and Authentication............................... 31
Section 2.03. Registrar and Paying Agent................................. 31
i
Section 2.04. Paying Agent to Hold Money in Trust...................................................... 32
Section 2.05. Holder Lists............................................................................. 32
Section 2.06. Transfer and Exchange.................................................................... 32
Section 2.07. Replacement Securities................................................................... 46
Section 2.08. Outstanding Securities................................................................... 46
Section 2.09. Treasury Securities...................................................................... 47
Section 2.10. Temporary Securities..................................................................... 47
Section 2.11. Cancellation............................................................................. 47
Section 2.12. Defaulted Interest....................................................................... 48
ARTICLE 3. SATISFACTION AND DISCHARGE.................................................................. 48
Section 3.01. Satisfaction and Discharge of Indenture.................................................. 48
Section 3.02. Application of Trust Money............................................................... 49
ARTICLE 4. REMEDIES.................................................................................... 49
Section 4.01. Events of Default........................................................................ 49
Section 4.02. Acceleration of Maturity; Rescission and Annulment....................................... 51
Section 4.03. Collection of Indebtedness and Suits for Enforcement by Trustee.......................... 52
Section 4.04. Trustee May File Proofs of Claim......................................................... 53
Section 4.05. Trustee May Enforce Claims Without Possession of Securities.............................. 53
Section 4.06. Application of Money Collected........................................................... 54
Section 4.07. Limitation on Suits...................................................................... 54
Section 4.08. Unconditional Right of Holders to Receive Principal, Premium and Interest............... 55
Section 4.09. Restoration of Rights and Remedies....................................................... 55
Section 4.10. Rights and Remedies Cumulative........................................................... 55
Section 4.11. Delay or Omission Not Waiver............................................................. 55
Section 4.12. Control by Holders....................................................................... 56
Section 4.13. Waiver of Past Defaults.................................................................. 56
Section 4.14. Undertaking for Costs.................................................................... 56
ii
Section 4.15. Waiver of Stay, Extension or Usury Laws..........................................56
ARTICLE 5. THE TRUSTEE.........................................................................57
Section 5.01. Certain Duties and Responsibilities..............................................57
Section 5.02. Notice of Defaults...............................................................58
Section 5.03. Certain Rights of Trustee........................................................58
Section 5.04. Not Responsible for Recitals or Issuance of Securities...........................59
Section 5.05. May Hold Securities..............................................................59
Section 5.06. Money Held in Trust..............................................................60
Section 5.07. Compensation and Reimbursement...................................................60
Section 5.08. Administrative Expense...........................................................60
Section 5.09. Disqualification; Conflicting Interests..........................................61
Section 5.10. Corporate Trustee Required; Eligibility..........................................61
Section 5.11. Resignation and Removal; Appointment of Successor................................61
Section 5.12. Acceptance of Appointment by Successor...........................................62
Section 5.13. Merger, Conversion, Consolidation or Succession to Business......................63
Section 5.14. Preferential Collection of Claims Against Company................................63
Section 5.15. Appointment of Authenticating Agent..............................................63
ARTICLE 6. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...................................66
Section 6.01. Company to Furnish Trustee Names and Addresses of Holders........................66
Section 6.02. Preservation of Information; Communications to Holders...........................66
Section 6.03. Reports by Trustee...............................................................66
Section 6.04. Reports by Company...............................................................66
ARTICLE 7. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................67
Section 7.01. Company May Consolidate, Etc., Only on Certain Terms.............................67
Section 7.02. Successor Substituted............................................................67
ARTICLE 8. SUPPLEMENTAL INDENTURES.............................................................68
iii
Section 8.01. Supplemental Indentures Without Consent of Holders...................................68
Section 8.02. Supplemental Indentures with Consent of Holders......................................69
Section 8.03. Execution of Supplemental Indentures.................................................69
Section 8.04. Effect of Supplemental Indentures....................................................70
Section 8.05. Conformity with Trust Indenture Act..................................................70
Section 8.06. Reference in Securities to Supplemental Indentures...................................70
Section 8.07. Notice of Supplemental Indentures....................................................70
Section 8.08. Effect on Senior Indebtedness........................................................70
ARTICLE 9. COVENANTS...............................................................................71
Section 9.01. Payment of Principal, Premium and Interest...........................................71
Section 9.02. Maintenance of Office or Agency......................................................71
Section 9.03. Money for Securities Payments to Be Held in Trust....................................71
Section 9.04. Statement by Officers as to Default..................................................72
Section 9.05. Existence............................................................................73
Section 9.06. Maintenance of Properties............................................................73
Section 9.07. Payment of Taxes and Other Claims....................................................74
Section 9.08. Provision of Financial Information...................................................74
Section 9.09. Limitation on Restricted Payments....................................................74
Section 9.10. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries...........................................................................77
Section 9.11. Limitation on Transactions with Shareholders and Affiliates..........................77
Section 9.12. Limitation on Indebtedness...........................................................78
Section 9.13. Limitation on Issuance of Guarantees of Indebtedness.................................79
Section 9.14. Other Agreements.....................................................................79
Section 9.15. Limitation on Liens..................................................................79
Section 9.16. Limitation on Certain Asset Dispositions.............................................79
Section 9.17. Restrictions on Senior Subordinated Indebtedness.....................................81
Section 9.18. Restrictions on Secured Indebtedness.................................................81
iv
Section 9.19. Restrictions on Sales and Leasebacks..........................82
Section 9.20. Waiver of Certain Covenants...................................82
Section 9.21. Effect of Investment Grade Rating.............................82
ARTICLE 10. REDEMPTION OF SECURITIES.........................................83
Section 10.01. Right of Redemption..........................................83
Section 10.02. Applicability of Article.....................................83
Section 10.03. Election to Redeem; Notice to Trustee........................83
Section 10.04. Selection by Trustee of Securities to Be Redeemed............83
Section 10.05. Notice of Redemption.........................................84
Section 10.06. Deposit of Redemption Price..................................85
Section 10.07. Securities Payable on Redemption Date........................85
Section 10.08. Securities Redeemed in Part..................................85
Section 10.09. Offer to Purchase............................................85
ARTICLE 11. SUBORDINATION....................................................86
Section 11.01. Agreement to Subordinate.....................................87
Section 11.02. Certain Definitions..........................................87
Section 11.03. Liquidation; Dissolution; Bankruptcy.........................87
Section 11.04. Default on Designated Senior Debt............................88
Section 11.05. Acceleration of Securities...................................89
Section 11.06. When Distribution Must Be Paid Over..........................89
Section 11.07. Notice by Company............................................89
Section 11.08. Subrogation..................................................89
Section 11.09. Relative Rights..............................................89
Section 11.10. Subordination May Not Be Impaired by Company.................90
Section 11.11. Distribution or Notice to Representative.....................90
Section 11.12. Rights of Trustee and Paying Agent...........................90
Section 11.13. Trustee Not Charged with Knowledge of Prohibition............90
v
ARTICLE 12. CHANGE OF CONTROL TRIGGERING EVENT...............................91
Section 12.01. Change of Control Triggering Event...........................91
ARTICLE 13. DEFEASANCE AND COVENANT DEFEASANCE...............................91
Section 13.01. Company's Option to Effect Defeasance or
Covenant Defeasance..........................................91
Section 13.02. Defeasance and Discharge.....................................92
Section 13.03. Covenant Defeasance..........................................92
Section 13.04. Conditions to Defeasance or Covenant Defeasance..............93
Section 13.06. Reinstatement................................................95
EXHIBITS
--------
Exhibit A FORM OF SECURITY
Exhibit B CERTIFICATE OF TRANSFER
Exhibit C CERTIFICATE OF EXCHANGE
Exhibit D CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
vi
________________________________________________________________________________
Xxxxx Refining & Marketing, Inc.
TO
Marine Midland Bank
Trustee
_______________________
INDENTURE
Dated as of November 21, 1997
SENIOR SUBORDINATED DEBT SECURITIES
________________________________________________________________________________
EXHIBIT A
(Face of Security)
XXXXX REFINING & MARKETING, INC.
___% ______ SUBORDINATED NOTES DUE ______
No. __________ $________
Xxxxx Refining & Marketing, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _______, or registered assigns, the
principal sum of up to $__________ in United States Dollars on
_____________________, and to pay interest at the rate of ____% per annum from
the Issue Date or from the most recent Interest Payment Date to which interest
has been paid or duly provided for in cash in arrears on each _________ and
___________ to the person whose name the Security is registered at the close of
business on the _________ or _____________ next preceding such Interest Payment
Date, until the principal hereof is paid or made available for payment;
provided, however, in the event that (i) the Company has not filed the
registration statement relating to the Exchange Offer within 90 days following
the Issue Date, or (ii) such registration statement (or, if applicable, the
resale registration statement) has not become effective within 180 days
following the Issue Date, (iii) the resale registration statement has not become
effective within 105 days of the date on which the obligation to file such
resale registration statement arose, or (iv) the Exchange Offer has not been
consummated within 30 business days after the effectiveness deadline of the
Exchange Offer Registration Statement, (v) the Company has not filed the resale
registration statement within 45 days after the obligation to file such resale
registration statement arose, or (vi) any registration statement required by the
Registration Rights Agreement is filed and declared effective but shall
thereafter cease to be effective (except as specifically permitted therein)
without being succeeded within 30 days by an additional registration statement
filed and declared effective (any such event referred to in Clauses (i) through
(vi), the "Registration Default"), then, as liquidated damages for such
Registration Default, subject to the Registration Rights Agreement, the per
annum interest rate on the Notes will increase by 0.25% ("Special Interest") for
the period from the occurrence of the Registration Default until such time as no
Registration Default is in effect (at which time the interest rate will be
reduced to its initial rate). If the Company has not consummated the Exchange
Offer (or, if applicable, the resale registration has not become effective),
within 270 days following the Issue Date, then the per annum dividend rate on
the Securities will increase by an additional 0.25% for so long as the Company
has not consummated the Exchange Offer (or until such resale registration
becomes effective).
Any accrued and unpaid interest on this Security upon the issuance of
an Exchange Note in exchange for this Security shall cease to be payable to the
Holder hereof but
A-1
such accrued and unpaid interest shall be payable on the next Interest Payment
Date for such Exchange Note to the Holder thereof on the related Regular Record
Date.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the __________ or ____________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date at
the office or agency of the Company at [ ] maintained for such purpose and
at any other office or agency maintained by the Company for such purchase (any
such location being called a "Place of Payment"); provided, however, that at the
option of the Company payment of interest may be made by check to the address of
the Person entitled thereto as such address shall appear on the Security
Register. Interest shall be payable in cash. Any such interest not so
punctually paid or duly provided, and interest on such defaulted interest at the
interest rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder on such Regular Record Date and shall be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date
("Special Record Date") for the payment of such defaulted interest to be fixed
by the Company with the consent of the Trustee, notice whereof shall be given to
Holders of Securities not less than 10 days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Securities
may be listed, and upon such notice as may be required by such securities
exchange, all as more fully provided in said Indenture.
If this Security is a Global Security, all payments in respect of this
Security will be payable to the Global Security Holder in its capacity as the
registered Holder under the Indenture. If this Security is not a Global
Security, payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the City and State of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts, or at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; provided,
however, that payment by wire transfer of immediately available funds will be
required with respect to principal of, premium, if any, and interest on, all
Global Notes and all other Securities the Holders of which shall have provided
wire transfer instructions to the Company or the Paying Agent.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
XXXXX REFINING & MARKETING, INC.
Attest:
_______________________ By __________________________
Name: Name:
Title: Title:
[Form of Trustee's Certificate of Authentication]
Certificate of Authentication
Dated: November 21, 1997
This is one of the Securities referred to in the within-mentioned
Indenture.
MARINE MIDLAND BANK,
as Trustee
By:_________________________
Authorized Signatory
A-3
(Back of Security)
THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE
144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON
WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION
OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
A-4
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. EACH IAI THAT IS NOT A QIB WILL BE
REQUIRED TO EFFECT ANY TRANSFER OF NOTES OR INTERESTS THEREIN (OTHER THAN
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT) THROUGH ONE OF THE INITIAL
PURCHASERS. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
This Security is one of a duly authorized issue of securities of the
Company designated as its _____% _________ Subordinated Notes due _______
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of _______________ (as it may from time to time be
supplemented or amended by one or more supplemental indentures, herein called
the "Indenture"), between the Company and Marine Midland Bank, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company and the Trustee of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This issue of Securities is limited in aggregate
principal amount to $_________________.
[The Securities are subject to redemption at the option of the
Company, in whole or in part at any time on or after _______________, upon not
less than __ nor more than __ days' notice mailed to each holder of Securities
to be redeemed at such holder's address appearing on the Company' Securities
Registrar, in principal amounts of $1,000 or an integral multiple of $1,000, at
the following redemption prices (expressed as percentages of the principal
amount) if redeemed during the 12-month period commencing on ____________ of
each of the years set forth below, plus, in each case, accrued thereon to, but
excluding, the date of redemption.
Year Percentage
---- ----------
_______
_______
_______
_______ and thereafter 100.000%
[In addition, the Company may, at its option, use the Net Available
Proceeds of one or more Equity Offerings to the extent the net cash proceeds
thereof are contributed to the equity capital of the Company to redeem for cash
up to __% in aggregate principal amount of the Securities originally issued
under the Indenture at any time prior to _______________, at a redemption price
equal to ________% of the aggregate principal amount so redeemed, plus accrued
interest, including Special Interest, to the Redemption Date; provided that at
least ___% of the principal amount of Securities originally issued remain
outstanding immediately after such
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redemption. Any such redemption shall be required to occur on or prior to ___
days after the receipt by the Company of the Net Available Proceeds of such
Equity Offering and upon not less than ___ nor more than ___ days' notice mailed
to each holder of Securities to be redeemed at such holder's address appearing
in the Company's Security Register, in principal amounts of $1,000 or an
integral multiple of $1,000. The Company may not use the Net Available Proceeds
of any Equity Offerings which alone or combined with a related series of
transactions result in a Change of Control to redeem Securities pursuant to this
paragraph.
If less than all of the Securities are to be redeemed at any time, the
Trustee shall select, in such manner as it shall deem fair and appropriate, the
particular Securities to be redeemed; provided that Securities redeemed in part
will only be redeemed in integral multiples of $1,000.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Available Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control Triggering Event occurs, the Company
shall be required to make an Offer to purchase for some or all of the Securities
in accordance with the terms of the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
In the event of redemption or purchase pursuant to a mandatory offer
to purchase of this Security in part only, a new Security or Securities for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. The Indenture also provides that, without
notice to or consent of any Holder, the Company and the Trustee may enter into
one or more supplemental indentures to, among other things, cure any ambiguity,
defect or inconsistency, provide for uncertificated securities in addition to or
in place of certificated Securities, or make any other change, in each case,
that does not adversely affect the rights of any Holder of a Security in any
material respect. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
A-6
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest, including Special Interest, if any, on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
The Securities are subordinated in right of payment, to the extent and
in the manner provided in Article 11 of the Indenture, to the prior payment in
full of all Senior Debt, which includes (i) all Indebtedness outstanding under
the Credit Agreement and the Loan Agreement, (ii) Indebtedness represented by
the Senior Notes, the 10/1//2% Notes and the 9/1//2% Notes, (iii) any other
Indebtedness permitted to be incurred by the Company under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Securities and (iv) all Obligations with respect to the
foregoing. Notwithstanding anything to the contrary in the foregoing, Senior
Debt will not include (v) Indebtedness represented by preferred stock, (w) any
liability for federal, state, local or other taxes owed or owing by the Company,
(x) any Indebtedness of the Company to any of its Subsidiaries or other
Affiliates, (y) any trade payables or (z) any Indebtedness that is incurred in
violation of this Indenture; provided, however, that any Indebtedness incurred
under the Credit Agreement, in respect of which the lenders or the agent
thereunder receive from the Company a representation that such Indebtedness is
Senior Debt for all purposes under this Indenture, shall be Senior Debt for all
purposes under this Indenture notwithstanding this clause (z). To the extent
provided in the Indenture, Senior Debt must be paid before the Securities may be
paid. The Company agrees and each Holder of Securities by accepting a Security
consents and agrees to the subordination provided in the Indenture and
authorizes the Trustee to give it effect.
As provided in the Indenture, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest, including Special
Interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiples of $1,000. As provided in
the Indenture and subject to certain limitations therein set forth, Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made to the Holder for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
A-7
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No director, officer, employee, stockholder or incorporator, as such,
of the Company shall have any liability for any obligations of the Company under
the Securities or the Indenture for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
Interest on this Security shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York (without giving effect to
conflicts of law principles thereof).
A-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Sections 10.09 and 9.16 of the Indenture, check the
box: [_]
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Sections 10.09 and 9.16 of the Indenture, state the
amount (which must be $1,000 or integral multiples thereof):
$____________________.
Dated: Your Signature:
------------------- -------------------------------------------
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:
-----------------------------------
(Signature must be guaranteed by a member firm
of a national securities exchange or a commercial
bank or trust company)
A-9
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: Your Signature:
--------------- ----------------------------------
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:
A-10
SCHEDULE OF EXCHANGES OF SECURITIES
The following exchanges of a part of this Global Note for another Global
Note or for Definitive Securities have been made:
Principal Amount Signature of
Amount of decrease Amount of increase of this Global authorized
in in Security officer of
Date of Exchange Principal Amount of Principal Amount of following such Trustee or
---------------- this Global this Global decrease Security
Security Security (or increase) Custodian
------------------- ------------------- ------------------- ------------------
X-00
XXXXXXX X-0
(Face of Temporary Global Note)
XXXXX REFINING & MARKETING, INC.
__%________ SUBORDINATED NOTES DUE ______
No. ____________ $________
Xxxxx Refining & Marketing, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________, or registered assigns, the
principal sum of up to $___________ in United States Dollars on
________________, and to pay interest at the rate of ___% per annum from the
Issue Date or from the most recent Interest Payment Date to which interest has
been paid or duly provided for in cash in arrears on each __________ and
____________ to the person whose name the Security is registered at the close of
business on the __________ or _________ next preceding such Interest Payment
Date, until the principal hereof is paid or made available for payment;
provided, however, in the event that (i) the Company has not filed the
registration statement relating to the Exchange Offer within 90 days following
the Issue Date, or (ii) such registration statement (or, if applicable, the
resale registration statement) has not become effective within 180 days
following the Issue Date, (iii) the resale registration statement has not become
effective within 105 days of the date on which the obligation to file such
resale registration statement arose, or (iv) the Exchange Offer has not been
consummated within 30 business days after the effectiveness deadline of the
Exchange Offer Registration Statement, (v) the Company has not filed the resale
registration statement within 45 days after the obligation to file such resale
registration statement arose, or (vi) any registration statement required by the
Registration Rights Agreement is filed and declared effective but shall
thereafter cease to be effective (except as specifically permitted therein)
without being succeeded within 30 days by an additional registration statement
filed and declared effective (any such event referred to in Clauses (i) through
(vi), the "Registration Default"), then, as liquidated damages for such
Registration Default, subject to the Registration Rights Agreement, the per
annum interest rate on the Notes will increase by 0.25% ("Special Interest") for
the period from the occurrence of the Registration Default until such time as no
Registration Default is in effect (at which time the interest rate will be
reduced to its initial rate). If the Company has not consummated the Exchange
Offer (or, if applicable, the resale registration has not become effective),
within 270 days following the Issue Date, then the per annum dividend rate on
the Securities will increase by an additional 0.25% for so long as the Company
has not consummated the Exchange Offer (or until such resale registration
becomes effective).
Any accrued and unpaid interest on this Security upon the issuance of
an Exchange Note in exchange for this Security shall cease to be payable to the
Holder hereof but
A1-1
such accrued and unpaid interest shall be payable on the next Interest Payment
Date for such Exchange Note to the Holder thereof on the related Regular Record
Date.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ____________ or ___________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date at
the office or agency of the Company at [ ] maintained for such purpose and
at any other office or agency maintained by the Company for such purchase (any
such location being called a "Place of Payment"); provided, however, that at the
option of the Company payment of interest may be made by check to the address of
the Person entitled thereto as such address shall appear on the Security
Register. Interest shall be payable in cash. Any such interest not so
punctually paid or duly provided, and interest on such defaulted interest at the
interest rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder on such Regular Record Date and shall be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date
("Special Record Date") for the payment of such defaulted interest to be fixed
by the Company with the consent of the Trustee, notice whereof shall be given to
Holders of Securities not less than 10 days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Securities
may be listed, and upon such notice as may be required by such securities
exchange, all as more fully provided in said Indenture.
If this Security is a Global Security, all payments in respect of this
Security will be payable to the Global Security Holder in its capacity as the
registered Holder under the Indenture. If this Security is not a Global
Security, payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the City and State of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts, or at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; provided,
however, that payment by wire transfer of immediately available funds will be
required with respect to principal of, premium, if any, and interest on, all
Global Notes and all other Securities the Holders of which shall have provided
wire transfer instructions to the Company or the Paying Agent.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
A1-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
XXXXX REFINING & MARKETING, INC.
Attest:
By
----------------------------- -----------------------------
Name: Name:
Title: Title:
[Form of Trustee's Certificate of Authentication]
Certificate of Authentication
Dated: November 21, 1997
This is one of the Securities referred to in the within-mentioned
Indenture.
MARINE MIDLAND BANK,
as Trustee
By:
-----------------------------
Authorized Signatory
A1-3
(Back of Temporary Global Note)
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR BENEFICIAL INTERESTS IN THE
REGULATION S PERMANENT GLOBAL NOTE, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
INTEREST HEREON.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE
144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON
WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING
A1-4
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION OF TRANSFER
OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN
EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. EACH IAI THAT IS NOT A QIB WILL BE REQUIRED TO
EFFECT ANY TRANSFER OF NOTES OR INTERESTS THEREIN (OTHER THAN PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT) THROUGH ONE OF THE INITIAL PURCHASERS. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
This Security is one of a duly authorized issue of securities of the
Company designated as its ____% _____________________ Subordinated Notes due
_____ (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ______________________ (as it may from
time to time be supplemented or amended by one or more supplemental indentures,
herein called the "Indenture"), between the Company and
___________________________, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company and the Trustee of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This issue of
Securities is limited in aggregate principal amount to $______________.
[The Securities are subject to redemption at the option of the
Company, in whole or in part at any time on or after _____________, upon not
less than __ nor more than ___ days' notice mailed to each holder of Securities
to be redeemed at such holder's address appearing on the Company' Securities
Registrar, in principal amounts of $1,000 or an integral multiple of $1,000, at
the following redemption prices (expressed as percentages of the principal
amount) if redeemed during the 12-month period commencing on _______________ of
each of the years set forth below, plus, in each case, accrued thereon to, but
excluding, the date of redemption.
A1-5
Year Percentage
---- ----------
---------
---------
---------
--------- and thereafter 100.000%
[In addition, the Company may, at its option, use the Net Available
Proceeds of one or more Equity Offerings to the extent the net cash proceeds
thereof are contributed to the equity capital of the Company to redeem for cash
up to __% in aggregate principal amount of the Securities originally issued
under the Indenture at any time prior to ______________, at a redemption price
equal to _________% of the aggregate principal amount so redeemed, plus accrued
interest, including Special Interest, to the Redemption Date; provided that at
least __% of the principal amount of Securities originally issued remain
outstanding immediately after such redemption. Any such redemption shall be
required to occur on or prior to ___ days after the receipt by the Company of
the Net Available Proceeds of such Equity Offering and upon not less than __ nor
more than __ days' notice mailed to each holder of Securities to be redeemed at
such holder's address appearing in the Company's Security Register, in principal
amounts of $1,000 or an integral multiple of $1,000. The Company may not use
the Net Available Proceeds of any Equity Offerings which alone or combined with
a related series of transactions result in a Change of Control to redeem
Securities pursuant to this paragraph.]
If less than all of the Securities are to be redeemed at any time, the
Trustee shall select, in such manner as it shall deem fair and appropriate, the
particular Securities to be redeemed; provided that Securities redeemed in part
will only be redeemed in integral multiples of $1,000.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Available Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control Triggering Event occurs, the Company
shall be required to make an Offer to purchase for some or all of the Securities
in accordance with the terms of the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
In the event of redemption or purchase pursuant to a mandatory offer
to purchase of this Security in part only, a new Security or Securities for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the
A1-6
time Outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all Securities, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. The Indenture also provides that,
without notice to or consent of any Holder, the Company and the Trustee may
enter into one or more supplemental indentures to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated securities in
addition to or in place of certificated Securities, or make any other change, in
each case, that does not adversely affect the rights of any Holder of a Security
in any material respect. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest, including Special Interest, if any, on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
The Securities are subordinated in right of payment, to the extent and
in the manner provided in Article 11 of the Indenture, to the prior payment in
full of all Senior Debt, which includes (i) all Indebtedness outstanding under
the Credit Agreement and the Loan Agreement, (ii) Indebtedness represented by
the Senior Notes, the 10/1//2% Notes and the 9/1//2% Notes, (iii) any other
Indebtedness permitted to be incurred by the Company under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Securities and (iv) all Obligations with respect to the
foregoing. Notwithstanding anything to the contrary in the foregoing, Senior
Debt will not include (v) Indebtedness represented by preferred stock, (w) any
liability for federal, state, local or other taxes owed or owing by the Company,
(x) any Indebtedness of the Company to any of its Subsidiaries or other
Affiliates, (y) any trade payables or (z) any Indebtedness that is incurred in
violation of this Indenture; provided, however, that any Indebtedness incurred
under the Credit Agreement, in respect of which the lenders or the agent
thereunder receive from the Company a representation that such Indebtedness is
Senior Debt for all purposes under this Indenture, shall be Senior Debt for all
purposes under this Indenture notwithstanding this clause (z). To the extent
provided in the Indenture, Senior Debt must be paid before the Securities may be
paid. The Company agrees and each Holder of Securities by accepting a Security
consents and agrees to the subordination provided in the Indenture and
authorizes the Trustee to give it effect.
Until this Regulation S Temporary Global Note is exchanged for one or
more Regulation S Permanent Global Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Notes under the Indenture.
A1-7
As provided in the Indenture, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest, including Special
Interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiples of $1,000. As provided in
the Indenture and subject to certain limitations therein set forth, Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
This Regulation S Temporary Global Note is exchangeable in whole or in
part for one or more Global Notes only (i) on or after the termination of the
40-day restricted period (as defined in Regulation S) and (ii) upon presentation
of certificates (accompanied by an Opinion of Counsel, if applicable) required
by Article 2 of the Indenture. Upon exchange of this Regulation S Temporary
Global Note for one or more Global Notes, the Trustee shall cancel this
Regulation S Temporary Global Note.
No service charge shall be made to the Holder for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No director, officer, employee, stockholder or incorporator, as such,
of the Company shall have any liability for any obligations of the Company under
the Securities or the Indenture for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
Interest on this Security shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York (without giving effect to
conflicts of law principles thereof).
A1-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Sections 10.09 and 9.16 of the Indenture, check the
box: [_]
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Sections 10.09 and 9.16 of the Indenture, state the
amount (which must be $1,000 or integral multiples thereof): $_________________.
Dated: _____________ Your Signature: _________________________________
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:
-------------------------------------------------
(Signature must be guaranteed by a member firm
of a national securities exchange or a commercial
bank or trust company)
A1-9
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: _________ Your Signature: _______________________________________
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:
A1-10
SCHEDULE OF EXCHANGES OF SECURITIES
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note or for Definitive Securities, or of
other Restricted global Notes or Definitive Securities for an interest in this
Regulation S Temporary global Note, have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Security
Date of Exchange this Global Security this Global Security (or increase) Custodian
---------------- --------------------- --------------------- ----------------------- ---------------------
A1-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Xxxxx Refining & Marketing, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 000000
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxx Refining & Marketing, Inc. ____________________ [notes]
Reference is hereby made to the Indenture with respect to the above-
referenced securities, dated as of November 21, 1997 (the "Indenture"), between
Xxxxx Refining & Marketing, Inc., as issuer (the "Company"), and Marine Midland
Bank, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of U.S. $_________ in such Note[s] or interests (the
"Transfer"), to __________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] Check if Transferee will take delivery of a beneficial interest in the
144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [_] Check if Transferee will take delivery of a beneficial interest in the
Temporary Regulation S Global Note or a Definitive Note pursuant to Regulation
S. The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act
B-1
and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Permanent Global Note,
the Regulation S Temporary Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
3. [_] Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Definitive Note pursuant to any provision
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial
B-2
interests in a Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the Indenture
and (2) if such Transfer is in respect of a principal amount of Notes at the
time of transfer of less than U.S. $250,000, an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the IAI Global Note and/or the Definitive Notes and
in the Indenture and the Securities Act.
4. [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [_] Check if Transfer is pursuant to Rule 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [_] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) [_] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, or Rule
904 and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
B-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
-----------------------------
[Insert Name of Transferor]
By:
--------------------------
Name:
Title:
Dated:
---------------,----
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP _________), or
(iii) [_] IAI Global Note (CUSIP ________); or
(b) [_] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP ________), or
(ii) [_] Regulation S Global Note (CUSIP ________), or
(iii) [_] IAI Global Note (CUSIP ________); or
(iv) [_] Unrestricted Global Note (CUSIP ________); or
(b) [_] a Restricted Definitive Note; or
(c) [_] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Xxxxx Refining & Marketing, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 000000
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Re: Xxxxx Refining & Marketing, Inc. ____________________ [notes]
(CUSIP ______________)
Reference is hereby made to the Indenture with respect to the above-
referenced securities, dated as of November 21, 1997 (the "Indenture"), between
Xxxxx Refining & Marketing, Inc., as issuer (the "Company"), and Marine Midland
Bank, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of U.S.
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note
(a) [_] Check if Exchange is from beneficial interest in a Restricted
Global Note to beneficial interest in an Unrestricted Global Note. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
C-1
(b) [_] Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [_] Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [_] Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) [_] Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
C-2
(b) [_] Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
___ 144A Global Note, ____ Regulation S Global Note, ___ IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
________________________________________
[Insert Name of Owner]
By: ____________________________________
Name:
Title:
Dated: ________________, ____
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Xxxxx Refining & Marketing, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 000000
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxx Refining & Marketing, Inc. ________________________ [notes]
Reference is hereby made to the Indenture with respect to the above-
referenced securities, dated as of November 21, 1997 (the "Indenture"), between
Xxxxx Refining & Marketing, Inc., as issuer (the "Company"), and Marine Midland
Bank, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
In connection with our proposed purchase of U.S. $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Note, or
(b) [_] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (c) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and, if such transfer is in respect of
a principal amount of Notes, at the time of transfer of less than U.S. $250,000,
an Opinion of
D-1
Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United States
in accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect. We further understand that any subsequent
transfer by us of the Notes or beneficial interest therein acquired by us must
be effected through one of the Placement Agents.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
______________________________________________
[Insert Name of Accredited Investor]
By: __________________________________________
Name:
Title:
Dated: __________________, ____
D-2
