EXHIBIT 4.2
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE dated as of May __, 1997 (the "Supplemental
Indenture"), to the Indenture, dated as of May 1, 1996 (the "Indenture"),
between TOSCO CORPORATION, a Nevada corporation (hereinafter called the
"Company"), and STATE STREET BANK AND TRUST COMPANY, a trust company organized
under the laws of the Commonwealth of Massachusetts (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of the
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities") to be issued in one or more series, as provided in the Indenture;
WHEREAS, the Company desires and has requested the Trustee to join it in
the execution and delivery of this Supplemental Indenture in order to establish
and provide for the issuance by the Company of three new series of Securities
designated as (i) its 7.25% Notes due 2007 (the "Notes due 2007") in the
aggregate principal amount of $200,000,000, a specimen copy of which is attached
hereto as Exhibit A; (ii) its 7.80% Debentures due 2027 (the "Debentures due
2027") in the aggregate principal amount of $300,000,000, a specimen copy of
which is attached hereto as Exhibit B; and (iii) its 7.90% Debentures due 2047
(the "Debentures due 2047") in the aggregate principal amount of $100,000,000, a
specimen copy of which is attached hereto as Exhibit C (the Notes due 2007,
Debentures due 2027 and Debentures due 2047 are collectively referred to herein
as the "Notes"), all on the terms set forth herein;
WHEREAS, Section 8.1 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of any holder of any Securities to, inter alia, (a) establish the terms of any
Securities as permitted by Sections 2.1 and 2.3 of the Indenture, provided
certain conditions are met, (b) add to the covenants of the Company and (c)
change certain provisions of the Indenture when there is no Outstanding Security
of any affected Series under the Indenture;
WHEREAS, the conditions set forth in the Indenture for the execution and
delivery of this Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
agreement of the Company and the Trustee, in accordance with its terms, and a
valid amendment of, and supplement to, the Indenture have been done.
NOW THEREFORE:
There are hereby established three new series (as that term is used in
Section 2.3 of the Indenture) of Securities to be issued under the Indenture,
which series of Securities shall have the terms set forth herein and in the
Notes, and in consideration of the premises and the exchange for and acceptance
of the Notes by the holders thereof, the Company mutually covenants and agrees
with the Trustee, for the equal and proportionate benefit of all holders of the
Notes, that the Indenture is supplemented and amended, to the extent and for the
purposes expressed herein, as follows:
ARTICLE ONE
SCOPE OF THIS SUPPLEMENTAL INDENTURE;
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 1.1. CHANGES, ETC. APPLICABLE ONLY TO THE NOTES. The changes,
modifications and supplements to the Indenture effected by this Supplemental
Indenture shall be applicable only with respect to, and govern the terms of, the
Notes, which shall be limited in aggregate principal amount to $600,000,000,
except as provided in Section 2.3(b) of the Indenture, and shall not apply to
any other Securities which may be issued under the Indenture unless a
supplemental indenture with respect to such other Securities specifically
incorporates such changes, modifications and supplements.
Section 1.2 DESIGNATION AND PRINCIPAL AMOUNT. There are hereby authorized
three new series of Notes, designated (a) the "Notes due 2007", limited in
aggregate principal amount to $200,000,000, (b) the "Debentures due 2027",
limited in aggregate principal amount to $300,000,000 and (c) the "Debentures
due 2047", limited in aggregate principal amount to $100,000,000. The amounts of
the Notes shall be as set forth in any written order of the Company for the
authentication and delivery of Notes pursuant to Section 2.4 of the Indenture.
Section 1.3 MATURITY. The Maturity Date of the Notes due 2007 is January 1,
2007, the Maturity Date of the Debentures due 2027 is January 1, 2027 and the
Maturity Date of the Debentures due 2047 is January 1, 2047.
Section 1.4 FORM AND PAYMENT. (a) The Notes shall be issued in fully
registered certificated form without coupons in denominations of $100,000 in
principal amount and integral multiples of $1,000 in excess thereof. Principal
and interest on the Notes issued in certificated form will be payable and the
transfer of such Notes will be registrable at the office or agency of the
Trustee; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the Holder at such address as shall appear in
the Security Register.
(b) In accordance with Section 2.3 of the Indenture, the Notes are subject
to the terms set forth in this Supplemental Indenture including, without
limitation, Exhibits A, B and C hereto, the terms of which are hereby
incorporated in their entirety by reference. In addition to the other terms of
the Notes which are set forth elsewhere in this Supplemental Indenture and
Exhibits A, B and C hereto, the Notes are subject to all of the provisions of
the Indenture as supplemented by this Supplemental Indenture, except as
otherwise provided in this Supplemental Indenture.
(c) The Notes shall have the Trustee's Certificate of Authentication
endorsed thereon substantially in the form of Exhibit A, B or C, as applicable,
to this Supplemental Indenture.
Section 1.5 DEPOSITARY.
So long as Notes are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, all Notes that are so eligible
may be represented by one or more Notes in global form ("Global Notes")
registered in the name of the Depositary or the nominee of the Depositary,
except as otherwise specified below. The transfer and exchange of beneficial
interests in any such Notes in global form shall be effected through the
Depositary in accordance with the Indenture and the procedures of the Depositary
therefor.
The Depositary shall be a clearing agency registered under the Exchange
Act. The Company initially appoints DTC to act as Depositary with respect to the
Notes in global form. Initially, the Global Notes shall be issued to DTC,
registered in the name of Cede & Co., as the nominee of DTC, and deposited with
the Trustee as custodian for Cede & Co.
If at any time the Depositary for the Global Notes notifies the Company
that it is unwilling or unable to continue as Depositary for such Notes, the
Company may appoint a successor Depositary with respect to such Notes. If a
successor Depositary for the Notes is not appointed by the Company within 90
days after the Company receives such notice, the Company will execute, and the
Trustee, upon receipt of an Officers' Certificate for authentication and
delivery of Notes, will authenticate and deliver Notes in definitive form, in an
aggregate principal amount equal to the principal amount of the Global Notes, in
exchange for the Global Notes.
Definitive Notes issued in exchange for all or a part of a Global Note
pursuant to this Section 1.5 shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. Upon
execution and authentication, the Trustee shall deliver such definitive Notes to
the person in whose names such definitive Notes are so registered.
At such time as all interests in a Global Note have been redeemed,
exchanged, repurchased or canceled, such Global Note shall be, upon receipt
thereof, canceled by the Trustee in accordance with standing procedures and
instructions of the Depositary. At any time prior to such cancellation, if any
interest in a Global Note is exchanged for definitive Notes, redeemed,
exchanged, repurchased by the Company or canceled, or transferred for part of a
Global Note, the principal amount of such Global Note shall, in accordance with
the standing procedures and instructions of the Depositary, be reduced or
increased, as the case may be, and an endorsement shall be made on such Global
Note by, or at the direction of, the Trustee to reflect such reduction or
increase.
1.6 ORIGINAL ISSUE OF NOTES. Notes in the aggregate principal amount of up
to $600,000,000 may, upon execution of this Supplemental Indenture, be executed
by the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and make available for delivery said Notes to or
upon the written order of the Company, signed by its Chairman, its Vice
Chairman, its Executive Vice President, its President, or any Vice President and
its Treasurer, any Assistant Treasurer, Secretary or any Assistant Secretary,
without any further action by the Company.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
Section 2.1. AMENDMENTS TO SECTION 1.1. Section 1.1 of the Indenture is
hereby amended by adding the following definitions in their proper alphabetical
order:
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act.
"Attributable Debt" when used in connection with a Sale and Leaseback
Transaction involving a Principal Property shall mean, at the time of
determination, the present value of the total net amount of rent required
to be paid under such lease during the remaining term thereof (including
any renewal term or period for which such lease has been extended),
discounted at the rate of interest set forth or implicit in the terms of
such lease or, if not practicable to determine such rate, the weighted
average interest rate per annum borne by the Securities of each Series
outstanding pursuant to this Indenture compounded semi-annually. For
purposes of the foregoing definition, rent shall not include amounts
required to be paid by the lessee on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges. In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of the penalty, but
no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Bank Credit Facility" means the bank facility provided for under the
Fourth Amended and Restated Credit Agreement, dated as of January 14, 1997,
among the Company and the banks that are or become parties from time to
time thereto, as it may be amended, supplemented or otherwise modified from
time to time, and any successor or replacement bank facility thereto.
"Consolidated Net Tangible Assets" means the total of all the assets
appearing on the consolidated balance sheet of the Company and its
Subsidiaries, less the following: (a) liabilities, (b) intangible assets,
including, without limitation, such items as goodwill, trademarks, trade
names, patents and unamortized debt discount and expense carried as an
asset on said balance sheet, and (c) appropriate adjustment on account of
minority interests of other persons holding stock in any Subsidiary.
Consolidated Net Tangible Assets shall be determined in accordance with
generally accepted accounting principles applied on a consistent basis and
shall be determined by reference to the most recent publicly available
quarterly or annual, as the case may be, consolidated balance sheet of the
Company.
"covenant defeasance" has the meaning specified in Section
10.1(b)(iii).
"DTC" means The Depository Trust Company.
"Funded Debt" means Debt which by its terms matures at, or can be
extended or renewed at the option of the obligor to, a date more than
twelve months after the date of the Debt's creation, including, but not
limited to, outstanding revolving credit loans.
"Global Notes" has the meaning specified in Section 1.5.
"Indebtedness" of a Person means, without duplication, (a) all
indebtedness of such Person which is (i) for money borrowed or (ii)
evidenced by a bond, debenture, note or similar instrument or letter of
credit given in connection with the acquisition of any businesses,
properties or assets of any kind other than trade accounts payable or
accrued liabilities arising in the ordinary course of business; (b)
obligations of such Person as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles and leases of property or assets made as part of any
sale and leaseback transaction to which such Person is a party; (c)
amendments, renewals, extensions, modifications, refundings and
refinancings of any indebtedness or obligations referred to in clause (a)
or (b); and (d) guarantees by such Person of any indebtedness or
obligations of the type referred to in clause (a), (b) or (c).
"Original Notes" means the debt securities issued by the Company
pursuant to the Original Supplemental Indenture.
"Original Supplemental Indenture" means the supplemental indenture
dated as of January 14, 1997, to the Indenture.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however
designated) that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Principal Property" means (i) any refining or processing plant
(together with any pipeline, terminal or other facility related to such
refining or processing plant and necessary for its economic operation) or
corporate offices, in any case owned or leased by the Company or any
Subsidiary, or any interest of the Company or any Subsidiary in such
property (in each case including the real estate related thereto) located
within the United States of America and (ii) any Capital Stock of any
Subsidiary that owns, directly or indirectly, a Principal Property of the
type described in clause (i).
"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 one year 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 similar 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 Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
Section 2.2. AMENDMENT TO SECTION 2.3. Section 2.3 of the Indenture is
hereby amended by deleting paragraph (u) in its entirety and inserting instead
the following new paragraph (u):
(u) the application, if any, of either or both
of Sections 10.1(b)(ii) or 10.1(b)(iii) to the
Securities of the Series.
Section 2.3. AMENDMENT TO ARTICLE III. Article III of the Indenture is
hereby amended by adding the following Sections 3.5 through 3.8:
SECTION 3.5 Limitation on Liens. (a) The Company shall not, and shall
not permit any Subsidiary to, incur any Debt secured by a Lien on any
Principal Property without making effective provision for securing all
Outstanding Securities of each Series having the benefit of this covenant
equally and ratably with such Debt as to such Principal Property.
(b) With respect to any particular Series of Securities, the foregoing
restrictions will not apply to: (i) Liens existing at the date of original
issuance of such Series of Securities; (ii) any Liens securing Debt owed by
the Company to one or more Subsidiaries of the Company; (iii) Liens on any
Principal Property of a Person existing prior to the time (A) such Person
becomes a Subsidiary of the Company, (B) such Person merges into or
consolidates with a Subsidiary of the Company or (C) another Subsidiary of
the Company merges into or consolidates with such Person (in a transaction
in which such Person becomes a Subsidiary of the Company); (iv) Liens on
any Principal Property existing at the time of acquisition thereof; (v)
Liens on any Principal Property to secure Debt incurred for the purpose of
financing all or any part of the purchase price or the cost of construction
or improvement of the Principal Property subject to such Liens in an
aggregate principal amount not to exceed the fair market value of such
property, construction or improvements; (vi) Liens on any Principal
Property of the Company or any Subsidiary in favor of governmental bodies
to secure certain advance or progress payments pursuant to any contract or
statute; and (vii) Liens to secure any extension, renewal, refinancing or
refunding (or successive extensions, renewals, refinancings or refundings),
in whole or in part, of any Debt secured by Liens referred to in the
foregoing clauses (i) to (vi), so long as such Lien does not extend to any
other property and the Debt so secured is not increased.
(c) Notwithstanding the foregoing, the Company or any Subsidiary may
incur Debt secured by Liens which otherwise would be subject to the
foregoing restrictions, in an aggregate amount which, together with all
other such Debt outstanding secured by Liens and all Attributable Debt
outstanding in respect of Sale and Leaseback Transactions (other than as
permitted by Section 3.6(a)), does not exceed 10% of Consolidated Net
Tangible Assets.
SECTION 3.6 Limitation on Sale and Leaseback Transactions. (a) The
Company shall not, and shall not permit any Subsidiary to, enter into any
Sale and Leaseback Transaction on any Principal Property (except for a
period not exceeding three years) unless: (i) the Company or such
Subsidiary would be entitled to incur a Lien to secure Debt by reason of
the provisions described in clauses (i) through (vii) of Section 3.5(b) in
an amount equal to the Attributable Debt of such Sale and Leaseback
Transaction without equally and ratably securing all Outstanding Securities
of each series having the benefit of this covenant or (ii) the Company or
such Subsidiary applies within 180 days an amount equal to, in the case of
a sale or transfer for cash, the net proceeds (not exceeding the net book
value), and, otherwise, an amount equal to the fair value (as determined by
its Board of Directors), of the property so leased to (A) the retirement of
Securities or other Funded Debt of the Company or such Subsidiary or (B) to
the acquisition of property which constitutes a Principal Property.
(b) Notwithstanding the foregoing, the Company or any Subsidiary may
enter into a Sale and Leaseback Transaction which would otherwise be
subject to the foregoing restriction, provided the amount of Attributable
Debt in respect of such Sale and Leaseback Transaction, together with all
other such Attributable Debt outstanding and all Debt outstanding secured
by Liens (other than as permitted by Section 3.5(b)), does not exceed 10%
of Consolidated Net Tangible Assets.
SECTION 3.7 Limitation on Subsidiary Funded Debt and Preferred Stock.
The Company will not permit any Subsidiary of the Company having a
Principal Property to incur or suffer to exist any Funded Debt or issue any
Preferred Stock except: (i) Funded Debt outstanding under the Bank Credit
Facility; (ii) Funded Debt or Preferred Stock outstanding on the date of
original issuance of the Securities of a particular series; (iii) Funded
Debt or Preferred Stock issued to and held by the Company or a Subsidiary
of the Company; (iv) Funded Debt incurred or Preferred Stock issued by a
Person prior to the time (A) such Person becomes a Subsidiary of the
Company, (B) such Person merges into or consolidates with a Subsidiary of
the Company or (C) another Subsidiary of the Company merges into or
consolidates with such Person (in a transaction in which such Person
becomes a Subsidiary of the Company); (v) Funded Debt or Preferred Stock
incurred for the purpose of financing all or any part of the purchase price
or the cost of construction of or improvements to the property of the
Company or any of its Subsidiaries in an aggregate principal amount or
liquidation preference, as the case may be, not to exceed the fair market
value of such property, construction or improvements; and (vi) Funded Debt
or Preferred Stock that is exchanged for, or the proceeds of which are used
to refinance or refund, any Funded Debt or Preferred Stock permitted to be
outstanding pursuant to clauses (i) through (v) (or any extension or
renewal thereof) in an aggregate principal amount or liquidation
preference, as the case may be (which, in the case of a Discount Security,
shall be the issue price thereof), not to exceed the principal amount of
the Funded Debt or the liquidation preference of the Preferred Stock, as
the case may be, so exchanged, refinanced or refunded (which, in the case
of a Discount Security, shall be the accreted value thereof).
Notwithstanding the foregoing, the Company's Subsidiaries may incur
Funded Debt and Preferred Stock in an aggregate principal amount and
liquidation preference that does not exceed 10% of Consolidated Net
Tangible Assets.
SECTION 3.8 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set
forth in Sections 3.5, 3.6 or 3.7 with respect to the Securities of any
Series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such Series
shall 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.
Section 2.4 AMENDMENT TO ARTICLE V. Article V of the Indenture is hereby
amended by deleting paragraphs (d) and (e) of Section 5.1 in their entirety.
Section 2.5 AMENDMENT TO ARTICLE VII. Article VII of the Indenture is
hereby amended by adding the following Section 7.6:
Section 7.6 Holders of Notes and Holders of Original Notes Vote as
Single Class. Whenever any provision of this Indenture provides for the
Holders of a Series of the Notes to vote and/or consent on any matter, the
Holders of such Series will vote and/or consent on any and all such matters
together with the holders of the corresponding Series of the Original Notes
as one class, and neither the Holders nor the holders of the Original Notes
corresponding to such Series will have the right to vote and/or consent as
a separate class on any matter.
Section 2.6. AMENDMENT TO SECTION 10.1(B). Section 10.1(b) of the Indenture
is hereby amended by deleting subparagraphs 10.1(b)(i), (ii) and (iii) in their
entirety and inserting instead the following new subparagraphs 10.1(b)(i),(ii),
(iii) and (iv):
SECTION 10.1(b)(i) In addition to the provisions of Section 10.1, the
Company may, at its option by or pursuant to, or otherwise in a manner or
by such Persons as may be authorized pursuant to, one or more resolutions
duly adopted by the Board of Directors, at any time with respect to the
Securities of any Series, elect to have defeasance under subsection (ii) or
covenant defeasance under subsection (iii) of this Section 10.1(b) be
applied to the Outstanding Securities of such Series provided that
provision therefor is made for such application pursuant to Section 2.3 and
the applicable conditions thereto as set forth in this Section 10.1(b) have
been satisfied.
SECTION 10.1(b) (ii) Upon the Company's exercise of the option
referenced in Section 10.1(b)(i) applicable to this subsection, the Company
may terminate its obligations under the Outstanding Securities of any
Series and hereunder with respect to such Series on 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 of such Series and to have satisfied all its other obligations
under such Securities insofar as such Securities are concerned (and the
Trustee, at the expense and request of the Company, shall execute proper
instruments acknowledging the same), except for the following: (1) the
rights of Holders of Outstanding Securities of such Series to receive
payments in respect of the principal of and interest on such Securities
when such payments are due, (2) the Company's obligations with respect to
such Securities under Sections 2.8, 2.9, 2.11, 3.2, 6.7, 10.4 and 10.5 of
the Indenture, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and (4) this Section 10.1(b).
SECTION 10.1(b)(iii) Upon the Company's exercise of the option
referenced in Section 10.1(b)(i) applicable to this subsection, the Company
shall be released from its obligations under Sections 3.5, 3.6 and 3.7 with
respect to the Outstanding Securities of such Series on and after the date
the conditions set forth below are satisfied (hereinafter, the "covenant
defeasance"). For this purpose, such covenant defeasance means that, with
respect to the Outstanding Securities of such Series, 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, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section
or by reason of any reference in any such Section to any other provision
herein or in any other document (including, without limitation, the form of
Securities of such Series), but the remainder of this Indenture and the
rights of each Holder of such Securities shall be unaffected thereby.
SECTION 10.1(b)(iv) The following shall be the conditions to the
application of Section 10.1(b)(ii) or (iii) to the Outstanding Securities
of such Series:
(A) The Company shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.10 who shall agree to comply with the
provisions of this Section 10.1(b) applicable to it) under the terms
of an irrevocable trust agreement, as trust funds in trust solely for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Securities of such Series, (i) cash in Dollars, or (ii) Government
Obligations maturing as to principal and interest in such amounts and
at such times as are sufficient, to pay the principal of and interest
on the Outstanding Securities of such Series to Maturity or
redemption, as the case may be, or (iii) a combination thereof, in
each case 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, (x) the principal of and each installment of principal
of and interest, if any, on the Outstanding Securities of such Series
on the Stated Maturity of such principal or installment of principal
or interest, if any, and (y) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities of such
Series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities.
Such irrevocable trust agreement shall include, among other things,
(i) provision for the payments referenced in clauses (x) and (y) of
the immediately preceding sentence, (ii) the payment of the reasonable
expenses of the Trustee incurred or to be incurred in connection with
carrying out such trust provisions, (iii) rights of registration,
transfer, substitution and exchange of Securities of such Series in
accordance with the terms stated in this Indenture and (iv)
continuation of the rights and obligations and immunities of the
Trustee as against the Holders of Securities of such Series as stated
in this Indenture.
(B) No Event of Default or event which with notice or lapse of time or
both would constitute an Event of Default with respect to the
Securities of such Series shall have occurred and be continuing on the
date of such deposit or shall occur as a result of such deposit or,
insofar as Section 5.1(f) and 5.1(g) are concerned, at any time during
the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(C) Such deposit, defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(D) The Company shall have delivered to the Trustee an Opinion of
Counsel of recognized national standing to the effect that
Securityholders of such Series will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and
discharge and will be subject to federal income tax on the same
amounts and in the same manner and at the same time as would have been
the case if such deposit and defeasance or covenant defeasance, as the
case may be, had not occurred.
(E) The Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the deposit and defeasance
or covenant defeasance, as the case may be, contemplated by this
Section 10.1(b) have been complied with.
Section 2.7 AMENDMENT TO SECTION 10.4. Section 10.4 of the Indenture is
hereby amended by deleting Section 10.4 in its entirety and inserting instead
the following new Section 10.4:
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying
Agent. Any moneys deposited with or paid to the Trustee or any Paying Agent
(including the Company acting as its own Paying Agent) for the payment of
the principal of or interest on any Security of any Series and not applied
but remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable, shall, upon the
written request of the Company, and subject to applicable escheat laws,
promptly be repaid to the Company by the Trustee for such Series or such
Paying Agent (except that with respect to any amounts then held by the
Company in trust as its own Paying Agent no such request need be given and
at such time the Company shall be discharged from its request to hold such
moneys in trust as Paying Agent), and the Holder of the Securities of such
Series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Company for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any Paying Agent with respect
to such moneys shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment with
respect to moneys deposited with it for any payment in respect to
Securities of any Series, shall at the expense and written request of the
Company, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security Register, notice, that such
moneys remain and that, after a date specified therein, which shall not be
less than thirty days from the date of such mailing, any unclaimed balance
of such money then remaining will be repaid to the Company. Anything in
this Article X to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the written request of the
Company any money or Government Obligations held by it as provided in
Section 10.1(b)(iv) 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 such defeasance or
covenant defeasance, as the case may be, in accordance with the provisions
of this Indenture.
Section 2.8. RANKING. The Notes will be unsecured obligations of the
Company, ranking equally and PARI PASSU with all other unsecured and
unsubordinated debt of the Company.
Section 2.9. TERMS OF THE NOTES. In accordance with Section 2.3 of the
Indenture, the Notes are subject to the terms set forth in this Supplemental
Indenture including, without limitation, Exhibits A, B and C hereto, the terms
of which are hereby incorporated in their entirety by reference. In addition to
the other terms of the Notes which are set forth elsewhere in this Supplemental
Indenture and Exhibits A, B and C hereto, the Notes are subject to all of the
provisions of the Indenture including, without limitation, the Company's
defeasance option and covenant defeasance option pursuant to Section 10.1 of the
Indenture, as supplemented by this Supplemental Indenture. For purposes of
Section 10.1 of the Indenture, as supplemented by this Supplemental Indenture,
the restrictive covenants referred to therein shall include the covenants set
forth in Article Two of this Supplemental Indenture. Each series of Notes shall
act as a separate Series with respect to all actions to be taken by, or matters
relating to, such Series.
ARTICLE THREE
REDEMPTION OF THE NOTES
Section 3.1. REDEMPTION. The Notes are not redeemable at any time prior to
their maturity.
Section 3.2. NO SINKING FUND. The Notes are not entitled to the benefit of
any sinking fund.
ARTICLE FOUR
MISCELLANEOUS
Section 4.1. DEFINED TERMS. Unless otherwise provided in this Supplemental
Indenture, all defined terms used in this Supplemental Indenture shall have the
meanings assigned to them in the Indenture.
Section 4.2. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
ACT OF 1939. If and to the extent that any provision of this Supplemental
Indenture limits, qualifies or conflicts with another provision included in this
Supplemental Indenture or in the Indenture which is required to be included
herein or therein by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939, as amended, such required provision shall control.
Section 4.3. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE AND THE
NOTES SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE
STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW
RULES OF SAID STATE.
Section 4.4. COUNTERPARTS. 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 4.5. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 4.6. SEVERABILITY OF PROVISIONS. In case any provision in this
Supplemental Indenture or in the Notes 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 4.7. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Supplemental Indenture by the parties hereto shall bind their respective
successors and assigns and inure to the benefit of their respective successors
and assigns, whether so expressed or not.
Section 4.8. BENEFIT OF SUPPLEMENTAL INDENTURE. Nothing in this
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent and their
successors hereunder, and the Holders of the Notes, any benefit or any legal or
equitable right, remedy or claim under this Supplemental Indenture.
Section 4.9. ACCEPTANCE BY TRUSTEE. The Trustee accepts the amendments to
the Indenture effected by this Supplemental Indenture and agrees to execute the
trusts created by the Indenture as hereby amended, but only upon the terms and
conditions set forth in the Indenture. Without limiting the generality of the
foregoing, the Trustee assumes no responsibility for the correctness of the
recitals contained herein, which shall be taken as the statements of the Company
and except as provided in the Indenture the Trustee shall not be responsible or
accountable in any way whatsoever for or with respect to the validity or
execution or sufficiency of this Supplemental Indenture and the Trustee makes no
representation with respect thereto.
Section 4.10. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURE CONTROLS;
SCOPE OF SUPPLEMENTAL INDENTURE.
(a) The Indenture, as supplemented by this Supplemental Indenture, is in
all respects ratified and confirmed, and this Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and therein
provided. The provisions of this Supplemental Indenture shall, subject to
Section 4.2 hereof, supersede the provisions of the Indenture to the extent the
Indenture is inconsistent herewith.
(b) The changes, modifications and supplements to the Indenture effected by
this Supplemental Indenture shall be applicable only with respect to, and govern
the terms of, the Notes, and shall not apply to any other Securities which may
be issued under the Indenture unless a supplemental indenture with respect to
such other Securities specifically incorporates such changes, modifications and
supplements.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the day and year first above written.
TOSCO CORPORATION
By:_______________________
Name:
Title:
STATE STREET BANK
AND TRUST COMPANY,
as Trustee
By:_______________________
Name:
Title:
EXHIBIT A
(FORM OF FACE OF NOTE)
[Legend if Note is to be deposited for securities clearance and settlement
through the facilities of The Depository Trust Company.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
No. ______________________ CUSIP NO. ______________
TOSCO CORPORATION
7.25% NOTE DUE 2007
TOSCO CORPORATION, a Nevada corporation (the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to __________ or registered assigns, at
the office or agency of the Company in New York, New York, the [principal sum of
____________Dollars](1) on January 1, 2007, in the coin or currency of the
United States, and to pay interest, semi-annually on January 1 and July 1 of
each year, commencing July 1, 1997, on said principal sum at said office or
agency, in like coin or currency, at the rate per annum specified in the title
of this Note, from the January 1 or the July 1, as the case may be, next
preceding the date of this Note to which interest has been paid, unless the date
hereof is a date to which interest has been paid, in which case from the date of
this Note, or unless no interest has been paid or duly provided for on the
corresponding Original Notes, in which case from January 1, 1997 until payment
of said principal sum has been made or duly provided for. Payments of such
principal and interest shall be made at the office or agency of the Company
maintained for such purpose, which, subject to the right of the Company to vary
or terminate the appointment of such agency, shall initially be at the principal
corporate trust office of State Street Bank and Trust Company in Boston,
Massachusetts; PROVIDED, that payment of interest may be made at the option of
the Company by check mailed to the address of the person entitled thereto as
such address shall appear on the Security Register or by wire transfer as
provided in the Indenture. Notwithstanding the foregoing, if the date hereof is
after December 15 or June 15, as the case may be, and before the following
January 1 or July 1, this Note shall bear interest from such January 1 or July
1; PROVIDED, that if the Company shall default in the payment of interest due on
such January 1 or July 1, then this Note shall bear interest from the next
preceding January 1 or July 1, to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided for on the corresponding
Original Notes, from January 1, 1997. The interest so payable on any January 1
or July 1 will, subject to certain exceptions provided in the Indenture referred
to on the reverse hereof, be paid to the person in whose name this Note is
registered at the close of business on the December 15 or June 15, as the case
may be, next preceding such January 1 or July 1, whether or not such day is a
Business Day.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as through fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by or on behalf of
the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, TOSCO CORPORATION has caused this instrument to be
signed manually or by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
Dated: __________, 1997
(SEAL) TOSCO CORPORATION
By________________________
Attest:
---------------------------
(1) In the case of a Global Note the bracketed text will be replaced with
the following: "principal amount set forth on Schedule A hereto."
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated herein and referred
to in the within-mentioned Indenture.
Dated: _________, 0000 XXXXX XXXXXX BANK AND TRUST
COMPANY, as Trustee
By:_________________________
Authorized Signatory
REVERSE OF NOTE
TOSCO CORPORATION
7.25% Note due 2007
This Note is one of a duly authorized issue of debentures, notes, bonds or
other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the Series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of May 1, 1996, as supplemented by
the Supplemental Indenture dated as of May __, 1997 (herein called the
"Indenture"), duly executed and delivered by the Company to State Street Bank
and Trust Company, 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 description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), may be subject to different sinking, purchase or
analogous funds (if any) and may otherwise vary as provided in the Indenture.
This Note is one of a Series designated as the 7.25% Notes due 2007 of the
Company, limited in aggregate principal amount to $200,000,000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal and, to the extent
lawful, on overdue installments of interest at the rate PER ANNUM borne by this
Note. If a payment date is not a Business Day as defined in the Indenture at a
place of payment, payment may be made at that place on the next succeeding day
that is a Business Day, and no interest shall accrue for the intervening period.
In case an Event of Default with respect to the Notes due 2007, as defined
in the Indenture, shall have occurred and be continuing, the principal hereof
and the interest accrued hereon, if any, may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of a majority of the aggregate principal amount
of the Securities at the time Outstanding of all Series to be affected (treated
as one class), evidenced as provided in the Indenture, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities of each such Series;
provided, however, that no such supplemental indenture shall (i) extend the
Stated Maturity of any Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable upon redemption thereof, or impair or
affect the right of any Holder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment at the option of the
Securityholder, without the consent of the Holder of each Security so affected,
or (ii) reduce the aforesaid percentage of Securities of any Series, the Holders
of which are required to consent to any such supplemental indenture, without the
consent of the Holder of each Security affected. It is also provided in the
Indenture that, with respect to certain defaults or Events of Default regarding
the Securities of any Series, prior to any declaration accelerating the maturity
of such Securities, the Holders of a majority in aggregate principal amount
Outstanding of the Securities of such Series (or, in the case of certain
defaults or Events of Default, all or certain Series of the Securities), may on
behalf of the Holders of all the Securities of such Series (or all or certain
Series of the Securities), as the case may be, waive any such past default or
Event of Default and its consequences. The preceding sentence shall not,
however, apply to a default in the payment of the principal of or premium, if
any, or interest on any of the Securities. Any such consent or waiver by the
Holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Note and any Note which may be issued in exchange or substitution
therefor, irrespective of whether or not any notation thereof is made upon this
Note or such other Note.
No reference herein to the Indenture, and no provision of this Note 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 on this Note in the manner, at the respective times, at the rate, and
in the coin or currency herein prescribed.
It is also provided in the Indenture that, subject to certain conditions,
the Holders of at least a majority in principal amount of the outstanding
Securities of all Series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such Series and its consequences, except a Default in the payment
of principal of or interest on any Security or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Security affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to the Securities of such Series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
As provided in the Indenture, this Note is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Note for registration of transfer at the office or agency of the Trustee in the
City and State of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the registered Holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment of, or
on account of, the principal hereof and, subject to the provisions hereof,
interest hereon, and for all other purposes, and neither the Company nor the
Trustee nor any authorized agent of the Company or the Trustee shall be affected
by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any Note,
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, shareholder, officer or director, as such, past,
present, or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
The Indenture with respect to any Series will be discharged and canceled
except for certain Sections thereof, subject to the terms of the Indenture, upon
the payment of all the Securities of such Series or upon the irrevocable deposit
with the Trustee of cash or Government Obligations (or a combination thereof)
sufficient for such payment in accordance with Article X of the Indenture.
The Notes of this Series are issuable only in registered form without
Coupons in denominations of $100,000 and any integral multiple of $1,000 in
excess thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Notes of this Series are exchangeable for a like aggregate
principal amount of Notes of this Series of a different authorized denomination,
as requested by the Holder surrendering the same.
This Indenture and this Note shall be deemed to be contracts made under the
laws of the State of New York, and for all purposes shall be governed by, and
construed in accordance with, the laws of such State.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
ASSIGNMENT
[FORM OF ASSIGNMENT FOR NOTES THAT ARE NOT GLOBAL NOTES]
For value received ______________ hereby sell(s), assign(s) and transfer(s)
unto
---------------------------------------------
(Please insert Social Security or other taxpayer
identification number of assignee.)
the within Note and hereby irrevocably constitutes and appoints
_________________ attorney to transfer the said Note on the books of the
Company, with full power of substitution in the premises.
Dated: ____________________
-----------------------------
-----------------------------
Signature(s)
Signature(s) must be
guaranteed by a
commercial bank or
trust company or a
member firm of a major
stock exchange.
-------------------------
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Note in every particular without
alteration or enlargement or any change whatever.
[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL NOTE TO REFLECT
CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global Note
===============================================================================
Principal Amount of
Securities by which this Remaining
Global Security is to be Principal
Reduced or Increased, and Amount of this
Reason for Reduction or Global Notation
Date Increase Security Made by
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
===============================================================================
EXHIBIT B
(FORM OF FACE OF DEBENTURE)
[Legend if Debenture is to be deposited for securities clearance and
settlement through the facilities of The Depository Trust Company.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY DEBENTURE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
No. ______________________ CUSIP NO. ______________
TOSCO CORPORATION
7.80% DEBENTURE DUE 2027
TOSCO CORPORATION, a Nevada corporation (the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ___________, or registered assigns, at
the office or agency of the Company in New York, New York, the [principal sum of
____________Dollars](1) on January 1, 2027, in the coin or currency of the
United States, and to pay interest, semi-annually on January 1 and July 1 of
each year, commencing July 1, 1997, on said principal sum at said office or
agency, in like coin or currency, at the rate per annum specified in the title
of this Debenture, from the January 1 or the July 1, as the case may be, next
preceding the date of this Debenture to which interest has been paid, unless the
date hereof is a date to which interest has been paid, in which case from the
date of this Debenture, or unless no interest has been paid or duly provided for
on the corresponding Original Notes, in which case from January 1, 1997 until
payment of said principal sum has been made or duly provided for. Payments of
such principal and interest shall be made at the office or agency of the Company
maintained for such purpose, which, subject to the right of the Company to vary
or terminate the appointment of such agency, shall initially be at the principal
corporate trust office of State Street Bank and Trust Company in Boston,
Massachusetts; PROVIDED, that payment of interest may be made at the option of
the Company by check mailed to the address of the person entitled thereto as
such address shall appear on the Security Register or by wire transfer as
provided in the Indenture. Notwithstanding the foregoing, if the date hereof is
after December 15 or June 15, as the case may be, and before the following
January 1 or July 1, this Debenture shall bear interest from such January 1 or
July 1; PROVIDED, that if the Company shall default in the payment of interest
due on such January 1 or July 1, then this Debenture shall bear interest from
the next preceding January 1 or July 1, to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for on the
corresponding Original Notes, from January 1, 1997. The interest so payable on
any January 1 or July 1 will, subject to certain exceptions provided in the
Indenture referred to on the reverse hereof, be paid to the person in whose name
this Debenture is registered at the close of business on the December 15 or June
15, as the case may be, next preceding such January 1 or July 1, whether or not
such day is a Business Day.
Reference is made to the further provisions of this Debenture set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as through fully set forth at this place.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, TOSCO CORPORATION has caused this instrument to be
signed manually or by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
Dated: __________, 1997
(SEAL) TOSCO CORPORATION
By________________________
Attest:
---------------------------
(1) In the case of a Global Debenture the bracketed text will be replaced with
the following: "principal amount set forth on Schedule A hereto."
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated herein and referred
to in the within-mentioned Indenture.
Dated: _______, 0000 XXXXX XXXXXX BANK AND TRUST
COMPANY, as Trustee
By:_________________________
Authorized Signatory
REVERSE OF DEBENTURE
TOSCO CORPORATION
7.80% Debenture due 2027
This Debenture is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the Series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of May 1, 1996, as supplemented by
the Supplemental Indenture dated as of May __, 1997 (herein called the
"Indenture"), duly executed and delivered by the Company to State Street Bank
and Trust Company, 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 description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), may be subject to different sinking, purchase or
analogous funds (if any) and may otherwise vary as provided in the Indenture.
This Debenture is one of a Series designated as the 7.80% Debentures due 2027 of
the Company, limited in aggregate principal amount to $300,000,000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal and, to the extent
lawful, on overdue installments of interest at the rate PER ANNUM borne by this
Debenture. If a payment date is not a Business Day as defined in the Indenture
at a place of payment, payment may be made at that place on the next succeeding
day that is a Business Day, and no interest shall accrue for the intervening
period.
In case an Event of Default with respect to the Debentures due 2027, as
defined in the Indenture, shall have occurred and be continuing, the principal
hereof and the interest accrued hereon, if any, may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of a majority of the aggregate principal amount
of the Securities at the time Outstanding of all Series to be affected (treated
as one class), evidenced as provided in the Indenture, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities of each such Series;
provided, however, that no such supplemental indenture shall (i) extend the
Stated Maturity of any Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable upon redemption thereof, or impair or
affect the right of any Holder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment at the option of the
Securityholder, without the consent of the Holder of each Security so affected,
or (ii) reduce the aforesaid percentage of Securities of any Series, the Holders
of which are required to consent to any such supplemental indenture, without the
consent of the Holder of each Security affected. It is also provided in the
Indenture that, with respect to certain defaults or Events of Default regarding
the Securities of any Series, prior to any declaration accelerating the maturity
of such Securities, the Holders of a majority in aggregate principal amount
Outstanding of the Securities of such Series (or, in the case of certain
defaults or Events of Default, all or certain Series of the Securities), may on
behalf of the Holders of all the Securities of such Series (or all or certain
Series of the Securities), as the case may be, waive any such past default or
Event of Default and its consequences. The preceding sentence shall not,
however, apply to a default in the payment of the principal of or premium, if
any, or interest on any of the Securities. Any such consent or waiver by the
Holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and any Debenture which may be issued in exchange or
substitution therefor, irrespective of whether or not any notation thereof is
made upon this Debenture or such other Debenture.
No reference herein to the Indenture, and no provision of this Debenture 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 on this Debenture in the manner, at the respective times, at the rate,
and in the coin or currency herein prescribed.
It is also provided in the Indenture that, subject to certain conditions,
the Holders of at least a majority in principal amount of the outstanding
Securities of all Series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such Series and its consequences, except a Default in the payment
of principal of or interest on any Security or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Security affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to the Securities of such Series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
As provided in the Indenture, this Debenture is transferable by the
registered Holder hereof on the Security Register of the Company, upon surrender
of this Debenture for registration of transfer at the office or agency of the
Trustee in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the registered Holder hereof as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and, subject to the
provisions hereof, interest hereon, and for all other purposes, and neither the
Company nor the Trustee nor any authorized agent of the Company or the Trustee
shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, shareholder, officer or director, as
such, past, present, or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
The Indenture with respect to any Series will be discharged and canceled
except for certain Sections thereof, subject to the terms of the Indenture, upon
the payment of all the Securities of such Series or upon the irrevocable deposit
with the Trustee of cash or Government Obligations (or a combination thereof)
sufficient for such payment in accordance with Article X of the Indenture.
The Debentures of this Series are issuable only in registered form without
Coupons in denominations of $100,000 and any integral multiple of $1,000 in
excess thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Debentures of this Series are exchangeable for a like
aggregate principal amount of Debentures of this Series of a different
authorized denomination, as requested by the Holder surrendering the same.
This Indenture and this Debenture shall be deemed to be contracts made
under the laws of the State of New York, and for all purposes shall be governed
by, and construed in accordance with, the laws of such State.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
ASSIGNMENT
[FORM OF ASSIGNMENT FOR DEBENTURES THAT ARE NOT GLOBAL
DEBENTURES]
For value received ______________ hereby sell(s), assign(s) and transfer(s)
unto
---------------------------------------------
(Please insert Social Security or other
taxpayer identification number of assignee.)
the within Debenture and hereby irrevocably constitutes and appoints
_________________ attorney to transfer the said Debenture on the books of the
Company, with full power of substitution in the premises.
Dated: ____________________
-----------------------------
-----------------------------
Signature(s)
Signature(s) must be
guaranteed by a
commercial bank or
trust company or a
member firm of a major
stock exchange.
-------------------------
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Debenture in every particular without
alteration or enlargement or any change whatever.
[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURE TO
REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global Debenture
================================================================================
Principal Amount of
Securities by which this Remaining
Global Security is to be Principal
Reduced or Increased, and Amount of this
Reason for Reduction or Global Notation
Date Increase Security Made by
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EXHIBIT C
(FORM OF FACE OF DEBENTURE)
[Legend if Debenture is to be deposited for securities clearance and
settlement through the facilities of The Depository Trust Company.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY DEBENTURE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
No. ______________________ CUSIP NO. ______________
TOSCO CORPORATION
7.90% DEBENTURE DUE 2047
TOSCO CORPORATION, a Nevada corporation (the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ___________, or registered assigns, at
the office or agency of the Company in New York, New York, the [principal sum of
____________Dollars](1) on January 1, 2047, in the coin or currency of the
United States, and to pay interest, semi-annually on January 1 and July 1 of
each year, commencing July 1, 1997, on said principal sum at said office or
agency, in like coin or currency, at the rate per annum specified in the title
of this Debenture, from the January 1 or the July 1, as the case may be, next
preceding the date of this Debenture to which interest has been paid, unless the
date hereof is a date to which interest has been paid, in which case from the
date of this Debenture, or unless no interest has been paid or duly provided for
on the corresponding Original Notes, in which case from January 1, 1997 until
payment of said principal sum has been made or duly provided for. Payments of
such principal and interest shall be made at the office or agency of the Company
maintained for such purpose, which, subject to the right of the Company to vary
or terminate the appointment of such agency, shall initially be at the principal
corporate trust office of State Street Bank and Trust Company in Boston,
Massachusetts; PROVIDED, that payment of interest may be made at the option of
the Company by check mailed to the address of the person entitled thereto as
such address shall appear on the Security Register or by wire transfer as
provided in the Indenture. Notwithstanding the foregoing, if the date hereof is
after December 15 or June 15, as the case may be, and before the following
January 1 or July 1, this Debenture shall bear interest from such January 1 or
July 1; PROVIDED, that if the Company shall default in the payment of interest
due on such January 1 or July 1, then this Debenture shall bear interest from
the next preceding January 1 or July 1, to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for on the
corresponding Original Notes, from January 1, 1997. The interest so payable on
any January 1 or July 1 will, subject to certain exceptions provided in the
Indenture referred to on the reverse hereof, be paid to the person in whose name
this Debenture is registered at the close of business on the December 15 or June
15, as the case may be, next preceding such January 1 or July 1, whether or not
such day is a Business Day.
Reference is made to the further provisions of this Debenture set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as through fully set forth at this place.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, TOSCO CORPORATION has caused this instrument to be
signed manually or by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
Dated: ___________, 1997
(SEAL) TOSCO CORPORATION
By________________________
Attest:
---------------------------
(1) In the case of a Global Debenture the bracketed text will be replaced with
the following: "principal amount set forth on Schedule A hereto."
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated herein and referred
to in the within-mentioned Indenture.
Dated: _________, 0000 XXXXX XXXXXX BANK AND TRUST
COMPANY, as Trustee
By:_________________________
Authorized Signatory
REVERSE OF DEBENTURE
TOSCO CORPORATION
7.90% Debenture due 2047
This Debenture is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the Series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of May 1, 1996, as supplemented by
the Supplemental Indenture dated as of May __, 1997 (herein called the
"Indenture"), duly executed and delivered by the Company to State Street Bank
and Trust Company, 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 description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), may be subject to different sinking, purchase or
analogous funds (if any) and may otherwise vary as provided in the Indenture.
This Debenture is one of a Series designated as the 7.90% Debentures due 2047 of
the Company, limited in aggregate principal amount to $100,000,000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal and, to the extent
lawful, on overdue installments of interest at the rate PER ANNUM borne by this
Debenture. If a payment date is not a Business Day as defined in the Indenture
at a place of payment, payment may be made at that place on the next succeeding
day that is a Business Day, and no interest shall accrue for the intervening
period.
In case an Event of Default with respect to the Debentures due 2047, as
defined in the Indenture, shall have occurred and be continuing, the principal
hereof and the interest accrued hereon, if any, may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of a majority of the aggregate principal amount
of the Securities at the time Outstanding of all Series to be affected (treated
as one class), evidenced as provided in the Indenture, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities of each such Series;
provided, however, that no such supplemental indenture shall (i) extend the
Stated Maturity of any Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable upon redemption thereof, or impair or
affect the right of any Holder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment at the option of the
Securityholder, without the consent of the Holder of each Security so affected,
or (ii) reduce the aforesaid percentage of Securities of any Series, the Holders
of which are required to consent to any such supplemental indenture, without the
consent of the Holder of each Security affected. It is also provided in the
Indenture that, with respect to certain defaults or Events of Default regarding
the Securities of any Series, prior to any declaration accelerating the maturity
of such Securities, the Holders of a majority in aggregate principal amount
Outstanding of the Securities of such Series (or, in the case of certain
defaults or Events of Default, all or certain Series of the Securities), may on
behalf of the Holders of all the Securities of such Series (or all or certain
Series of the Securities), as the case may be, waive any such past default or
Event of Default and its consequences. The preceding sentence shall not,
however, apply to a default in the payment of the principal of or premium, if
any, or interest on any of the Securities. Any such consent or waiver by the
Holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and any Debenture which may be issued in exchange or
substitution therefor, irrespective of whether or not any notation thereof is
made upon this Debenture or such other Debenture.
No reference herein to the Indenture, and no provision of this Debenture 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 on this Debenture in the manner, at the respective times, at the rate,
and in the coin or currency herein prescribed.
It is also provided in the Indenture that, subject to certain conditions,
the Holders of at least a majority in principal amount of the outstanding
Securities of all Series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such Series and its consequences, except a Default in the payment
of principal of or interest on any Security or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Security affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to the Securities of such Series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
As provided in the Indenture, this Debenture is transferable by the
registered Holder hereof on the Security Register of the Company, upon surrender
of this Debenture for registration of transfer at the office or agency of the
Trustee in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the registered Holder hereof as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and, subject to the
provisions hereof, interest hereon, and for all other purposes, and neither the
Company nor the Trustee nor any authorized agent of the Company or the Trustee
shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, shareholder, officer or director, as
such, past, present, or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
The Indenture with respect to any Series will be discharged and canceled
except for certain Sections thereof, subject to the terms of the Indenture, upon
the payment of all the Securities of such Series or upon the irrevocable deposit
with the Trustee of cash or Government Obligations (or a combination thereof)
sufficient for such payment in accordance with Article X of the Indenture.
The Debentures of this Series are issuable only in registered form without
Coupons in denominations of $100,000 and any integral multiple of $1,000 in
excess thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Debentures of this Series are exchangeable for a like
aggregate principal amount of Debentures of this Series of a different
authorized denomination, as requested by the Holder surrendering the same.
This Indenture and this Debenture shall be deemed to be contracts made
under the laws of the State of New York, and for all purposes shall be governed
by, and construed in accordance with, the laws of such State.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
ASSIGNMENT
[FORM OF ASSIGNMENT FOR DEBENTURES THAT ARE NOT GLOBAL
DEBENTURES]
For value received ______________ hereby sell(s), assign(s) and transfer(s)
unto
---------------------------------------------
(Please insert Social Security or other
taxpayer identification number of
assignee.)
the within Debenture and hereby irrevocably constitutes and appoints
_________________ attorney to transfer the said Debenture on the books of the
Company, with full power of substitution in the premises.
Dated: ____________________
-----------------------------
-----------------------------
Signature(s)
Signature(s) must be
guaranteed by a
commercial bank or
trust company or a
member firm of a major
stock exchange.
-------------------------
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Debenture in every particular without
alteration or enlargement or any change whatever.
[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURE TO
REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global Debenture
===============================================================================
Principal Amount of
Securities by which this Remaining
Global Security is to be Principal
Reduced or Increased, and Amount of this
Reason for Reduction or Global Notation
Date Increase Security Made by
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