EXHIBIT 4.61
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Xxxxx Refining & Marketing, Inc.
TO
Marine Midland Bank
Trustee
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SUPPLEMENTAL INDENTURE
Dated as of November 21, 1997
8 7/8% Senior Subordinated Notes due 2007
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FIRST SUPPLEMENTAL INDENTURE, dated as of November 21, 1997 (this
"Supplemental Indenture") 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 entered into an Indenture dated November 21, 1997 with
the Trustee (the "Indenture") to provide for the issuance form time to time of
its unsecured senior subordinated debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one or more
series as in the Indenture provided.
The Company proposes to issue a series of Securities pursuant to the
Indenture to be titled the 8 7/8% Senior Subordinated Notes due 2007 (the
"Subordinated Notes").
Section 8.01(5) of the Indenture provides that 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 to the Indenture to
establish the form or terms of series of Securities as permitted by Section
2.01(g) thereof.
The entry into this Supplemental Indenture by the parties hereto is in
all respects authorized by the provisions of the Indenture.
All things necessary to make this Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Subordinated Notes by the Holders thereof, it is mutually agreed, for the equal
and proportionate benefit of all Holders of Subordinated Notes except as
otherwise provided in the Indenture or this Supplemental Indenture, as follows:
Section 1. This Supplemental Indenture establishes the form and terms
of a series of Securities pursuant to Section 2.01(g) of the Indenture to be
known as the 8 7/8% Senior Subordinated Notes Due 2007 as follows:
(1) the title of the Securities is the "8 - 7/8% Senior Subordinated
Notes Due 2007."
(2) the aggregate principal amount of the Subordinated Notes which may
be authenticated and delivered pursuant to the Indenture (except for
Subordinated Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Subordinated Notes pursuant to the
Indenture) is $175,000,000.
(3) the principal amount of the Subordinated Notes will be payable on
November 15, 2007.
(4) the Subordinated Notes shall bear interest at a rate equal to
8.875% per annum; interest on the Subordinated Notes shall accrue from November
21, 1997 or from the most recent interest payment date to which interest has
been paid or provided for, as the case may be; interest on the Subordinated
Notes shall be payable semi-annually on May 15 and November 15 of each year
until maturity, commencing on May 15, 1998; and interest shall be payable to
holders of record on the May 1 and November 1 immediately preceding the
applicable interest payment date.
(5) the place or places where the principal of (and premium, if any)
and interest on the Subordinated Notes shall be payable shall be as set forth in
the Subordinated Notes, the form of which is attached hereto as Exhibit A.
(6) the Subordinated Notes shall be subject to redemption at the
option of the Company prior to maturity as follows:
The Subordinated Notes will be redeemable, at the Company's option, in
whole or in part, at any time on and after November 15, 2002, upon not less than
30 nor more than 60 days' notice mailed to each holder of Subordinated Notes to
be redeemed at such holder's address appearing in the Security Register, 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 November 15 of each of the years set
forth below, plus, in each case, accrued interest thereon to, but excluding, the
date of redemption:
Year Percentage
---- ----------
2002................................ 104.437%
2003................................ 102.958%
2004................................ 101.479%
2005 and thereafter................. 100.000%
In addition, the Company may, at its option, use the net cash 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 35% in
aggregate principal amount of the Subordinated Notes originally issued under
this Supplemental Indenture at any time prior to November 15, 2001, at a
redemption price equal to 108.875% of the aggregate principal amount so
redeemed, plus accrued interest; provided that at least 50% of the principal
amount of Subordinated Notes originally issued remain outstanding immediately
after such redemption. Any such redemption will be required to occur on or prior
to 120 days after the receipt by the Company of the net cash proceeds of such
Equity Offering and upon not less than 30 nor more than 60 days' notice mailed
to each holder of Subordinated Notes to be redeemed at such holder's address
appearing in the Security Register, in principal amounts of $1,000 or an
integral multiple of $1,000. The Company may not use the net cash proceeds of
any Equity Offerings
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which alone or combined with a related series of transactions result in a Change
of Control to redeem Subordinated Notes pursuant to this paragraph.
If less than all of the Subordinated Notes are to be redeemed at any
time, the Trustee shall select, in such manner as it shall deem fair and
appropriate, the particular Notes to be redeemed or any portion thereof that is
an integral multiple of $1,000.
(7) the Company shall not be obligated to redeem or purchase the
Subordinated Notes pursuant to any sinking fund prior to maturity; the Company
shall be required to make an offer to repurchase Subordinated Notes as set forth
in Section 10.09 of the Indenture in connection with certain Asset Dispositions
pursuant to Section 9.16 and in connection with a Change of Control resulting in
a Rating Decline pursuant to Section 12.01.
(8) the Subordinated Notes shall be issued in minimum denominations of
$1,000 and integral multiples of $1,000 in excess thereof as set forth in the
Indenture.
(9) 100% of the principal amount of the Subordinated Notes shall be
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 4.02 of the Indenture.
(10) the Subordinated Notes shall include all of the Events of Default
set forth in the Indenture.
(11) both Section 13.02 and Section 13.03 shall apply to the
Subordinated Notes.
(12) the Trustee, Securities Registrar and Paying Agent for the
Subordinated Notes shall be Marine Midland Bank.
(13) there shall be no additions or changes to or deletions from the
provisions of Articles 1, 7, 9 and 10 of the Indenture, except that the specific
payment and redemption terms of the Subordinated Notes are as set forth herein
and in the Form of Subordinated Note attached hereto as Exhibit A.
(14) the Subordinated Notes shall be exchangeable for a new series of
Subordinated Notes to be registered under the Securities Act pursuant to an
exchange offer as set forth in the Indenture.
(15) the Subordinated Notes shall not be secured by any collateral.
(16) the Subordinates Notes shall not be guaranteed by any Person.
(17) the Subordinated Notes shall be senior subordinated obligations
of the Company and shall be subordinated in right of payment to all existing and
future Senior Debt of the Company as provided in the Indenture.
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(18) the Subordinated Notes will be in substantially the form set
forth in Exhibit A hereto and may have such other terms as are provided in such
form, and such terms are incorporated herein by reference.
Section 2. The Subordinated Notes shall be substantially in the form
of Exhibit A hereto which form is hereby incorporated in and made a part of this
Supplemental Indenture. Subject to Section 2.07 of the Indenture, the
Subordinated Notes shall be in an aggregate principal amount of $175,000,000.
The Subordinated Notes may have notations, legends or endorsements required by
law. stock exchange rule, or agreements to which the Company is subject. Each
Subordinated Note shall be dated the date of its authentication.
The terms and provisions contained in the Subordinated Notes shall
constitute, and are hereby expressly made, a part of this Supplemental
Indenture, and the Company and the Trustee, by their execution and delivery of
this Supplemental Indenture, expressly agree to such terms and provisions and to
be bound thereby.
Section 3. Except as specifically supplemented and amended by this
Supplemental Indenture, the terms and provisions of the Indenture shall remain
in full force and effect. The Indenture, as supplemented and amended by this
Supplemental Indenture and all other indentures supplemental thereto, is in all
respects ratified and confirmed, and the Indenture, this Supplemental Indenture
and all indentures supplemental thereto shall be read, taken and construed as
one and the same instrument.
Section 4. If any provision hereof limits, qualifies or conflict with
another provision hereof which is required to be included in this Supplemental
Indenture by any of the provisions of the Trust Indenture Act, such required
provision shall control.
Section 5. All covenants and agreements in this Supplemental
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 6. In case any provision in this Supplemental Indenture or in
the Securities of any series shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions (or of the
other series of Securities) shall not in any way be affected or impaired
thereby.
Section 7. Nothing in this Supplemental Indenture, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the holders of the Subordinated Notes any benefit or
any legal or equitable right, remedy or claim under this Supplemental Indenture.
Section 8. This Supplemental Indenture and each Subordinated Note
shall be deemed to be a contract made under the laws of the State of New York
and this Supplemental Indenture and each Subordinated Note shall be governed by
and construed in accordance with the laws of the State of New York.
Section 9. All terms used in this Supplemental Indenture and not
otherwise defined herein that are defined in the Indenture shall have the
meanings set forth therein.
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Section 10. This Supplemental Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 11. The recitals contained herein and in the Subordinated
Notes, except the certificate of authentication of the Trustee thereon, shall be
taken as statements of the Company, and the Trustee assumes no responsibility
for their accuracy or completeness. The Trustee make no representations as to
the validity or sufficiency of the Indenture, this Supplemental Indenture or of
the Subordinated Notes and shall not be accountable for the use or application
by the Company of the Subordinated Notes or the proceeds thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and 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
Attest:
_____________________________
EXHIBIT A
(Face of Security)
XXXXX REFINING & MARKETING, INC.
8 7/8% SENIOR SUBORDINATED NOTES DUE 2007
No. __________ $175,000,000
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 Cede & Co., or registered assigns, the
principal sum set forth above or such other principal sum indicated on the
Schedule attached hereto (which shall not exceed $175,000,000) in United States
Dollars on November 15, 2007, and to pay interest at the rate of 8 7/8% 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 May 15
and November 15 to the person whose name the Security is registered at the close
of business on the May 1 or November 1 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 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 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.
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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 May 1 or November 1 (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 New York, New York 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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: November 21, 1997
XXXXX REFINING & MARKETING, INC.
Attest:
------------------------------- By __________________________
Name: Name:
Title: Title:
Certificate of Authentication
This is one of the Securities referred to in the within-mentioned
Indenture.
MARINE MIDLAND BANK,
as Trustee
By:_________________________________________
Authorized Signatory
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(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
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR ANY INTEREST
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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 8 7/8% Senior Subordinated Notes due 2007 (herein
called the "Securities"), issued and to be issued in one or more series under an
Indenture, dated as of November 21, 1997 (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 $175,000,000.
The Securities are subject to redemption at the option of the Company,
in whole or in part at any time on or after November 15, 2002, upon not less
than 30 nor more than 60 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 November 15 of each
of the years set forth below, plus, in each case, interest accrued thereon to,
but excluding, the date of redemption.
Year Percentage
---- ----------
2002 104.437%
2003 102.958%
2004 101.479%
2005 and thereafter 100.000%
In addition, the Company may, at its option, use the net cash 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 35% in
aggregate principal amount of the Securities originally issued under the
Indenture at any time prior to November 15, 2001, at a redemption price equal to
108.875% of the aggregate principal amount so redeemed, plus accrued interest,
including Special Interest, to the Redemption Date; provided that at least 50%
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 120 days after the
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receipt by the Company of the Net Available Proceeds of such Equity Offering and
upon not less than 30 nor more than 60 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.
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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 $1,000 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.
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
A-7
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 Amount of of this Global authorized
decrease in increase in Security officer of
Principal Amount Principal Amount following such Trustee or
Date of of this Global of this Global decrease Security
Exchange Security Security (or increase) Custodian
-------- ---------------- ---------------- ---------------- ------------
X-00
XXXXXXX X-0
(Face of Temporary Global Note)
XXXXX REFINING & MARKETING, INC.
8 7/8% SENIOR SUBORDINATED NOTES DUE 2007
No. __________ $0.00
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 Cede & Co., or registered assigns, the
principal sum of set forth above or such other principal sum indicated on the
Schedule attached hereto (which shall not exceed $175,000,000) in United States
Dollars on November 15, 2007, and to pay interest at the rate of 8 7/8% 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 May 15
and November 15 to the person whose name the Security is registered at the close
of business on the May 1 or November 1 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 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 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.
A1-1
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 May 1 or November 1 (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 New York, New York 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: November 21, 1997
XXXXX REFINING & MARKETING, INC.
Attest:
_____________________________ By __________________________
Name: Name:
Title: Title:
Certificate of Authentication
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 CERTIFICATED NOTES, 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 CERTAIN REPRESENTATIONS AND
A1-4
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 8 7/8% Senior Subordinated Notes due 2007 (herein
called the "Securities"), issued and to be issued in one or more series under an
Indenture, dated as of November 21, 1997 (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 $175,000,000.
The Securities are subject to redemption at the option of the Company,
in whole or in part at any time on or after November 15, 2002, upon not less
than 30 nor more than 60 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 November 15 of each
of the years set forth below, plus, in each case, interest accrued thereon to,
but excluding, the date of redemption.
A1-5
Year Percentage
---- ----------
2002 104.437%
2003 102.958%
2004 101.479%
2005 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 net cash proceeds thereof
are contributed to the equity capital of the Company to redeem for cash up to
35% in aggregate principal amount of the Securities originally issued under the
Indenture at any time prior to November 15, 2001, at a redemption price equal to
108.875% of the aggregate principal amount so redeemed, plus accrued interest,
including Special Interest, to the Redemption Date; provided that at least 50%
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 120 days after the receipt by the Company of the Net
Available Proceeds of such Equity Offering and upon not less than 30 nor more
than 60 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
A1-6
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.
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,
A1-7
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 $1,000 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 Supplemental
Indenture shall have the meanings assigned to them in the Supplemental
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).
OPTION OF HOLDER TO ELECT XXXXXXXX
X0-0
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 Signature of
Amount of Amount of of this Global authorized
decrease in increase in Security officer of
Principal Amount Principal Amount following such Trustee or
Date of of this Global of this Global decrease Security
Exchange Security 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, the 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 and, accordingly,
the Transferor hereby further certifies that (i)
B-1
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
Global Note, the Temporary Regulation S 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 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
B-2
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 903 or 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, Rule
903 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 00000
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 Counsel in form reasonably acceptable
to the Company to the effect that such transfer is in
D-1
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
