EXHIBIT 4.2
GIANT INDUSTRIES, INC.,
as Issuer,
THE SUBSIDIARY GUARANTORS,
as Guarantors,
and
THE BANK OF NEW YORK,
as Trustee
INDENTURE
DATED AS OF MAY 14, 2002
11% SENIOR SUBORDINATED NOTES DUE 2012
TABLE OF CONTENTS
PAGE
----
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE........................... 1
Section 1.01. Definitions.......................................... 1
Section 1.02. Other Definitions.................................... 12
Section 1.03. Incorporation by Reference of Trust Indenture Act.... 13
Section 1.04. Rules of Construction................................ 13
ARTICLE TWO
THE NOTES............................................................ 14
Section 2.01. Form and Dating...................................... 14
Section 2.02. Execution and Authentication......................... 15
Section 2.03. Registrar and Paying Agent........................... 15
Section 2.04. Paying Agent to Hold Money in Trust.................. 16
Section 2.05. Lists of Holders of Notes............................ 16
Section 2.06. Transfer and Exchange................................ 16
Section 2.07. Replacement Notes.................................... 21
Section 2.08. Outstanding Notes; Treasury Notes.................... 21
Section 2.09. Temporary Notes and Definitive Notes................. 21
Section 2.10. Cancellation......................................... 22
Section 2.11. Defaulted Interest................................... 22
Section 2.12. CUSIP Number......................................... 22
Section 2.13. Persons Deemed Owners................................ 22
Section 2.14. Issuance of Additional Notes......................... 23
ARTICLE THREE
REDEMPTION........................................................... 23
Section 3.01. Notice to Trustee.................................... 23
Section 3.02. Selection of Notes to Be Redeemed.................... 23
Section 3.03. Notice of Redemption................................. 23
Section 3.04. Effect of Notice of Redemption....................... 24
Section 3.05. Deposit of Redemption Price.......................... 24
Section 3.06. Notes Redeemed in Part............................... 24
ARTICLE FOUR
COVENANTS............................................................ 25
Section 4.01. Payment of Notes..................................... 25
Section 4.02. Commission Reports................................... 25
Section 4.03. Compliance Certificates.............................. 25
Section 4.04. Maintenance of Office or Agency...................... 26
Section 4.05. Corporate Existence.................................. 26
Section 4.06. Waiver of Stay, Extension or Usury Laws.............. 27
Section 4.07. Payment of Taxes and Other Claims.................... 27
Section 4.08. Maintenance of Properties and Insurance; Line of
Business.......................................... 27
Section 4.09. Limitation on Incurrence of Additional Indebtedness.. 27
Section 4.10. Limitation on Restricted Payments.................... 28
Section 4.11. Limitation on Sale of Assets......................... 29
Section 4.12. Limitation on Liens Securing Indebtedness............ 32
Section 4.13. Limitation on Payment Restrictions Affecting
Restricted Subsidiaries............................ 32
Section 4.14. Limitation on Transactions with Affiliates........... 32
Section 4.15. Limitation on Future Senior Subordinated Indebtedness 33
Section 4.16. Change of Control.................................... 33
ARTICLE FIVE
SUCCESSOR CORPORATION................................................ 34
Section 5.01. When Company May Merge, Etc.......................... 34
Section 5.02. Successor Corporation Substituted.................... 35
ARTICLE SIX
DEFAULTS AND REMEDIES................................................ 35
Section 6.01. Events of Default.................................... 35
Section 6.02. Acceleration......................................... 36
Section 6.03. Other Remedies....................................... 37
Section 6.04. Waiver of Past Defaults.............................. 37
Section 6.05. Control by Majority.................................. 37
Section 6.06. Limitation on Remedies............................... 37
Section 6.07. Rights of Holders to Receive Payment................. 38
Section 6.08. Collection Suit by Trustee........................... 38
Section 6.09. Trustee May File Proofs of Claim..................... 38
Section 6.10. Priorities........................................... 38
Section 6.11. Undertaking for Costs................................ 38
ARTICLE SEVEN
TRUSTEE.............................................................. 39
Section 7.01. Duties of Trustee.................................... 39
Section 7.02. Rights of Trustee.................................... 40
Section 7.03. Individual Rights of Trustee......................... 40
Section 7.04. Trustee's Disclaimer................................. 41
Section 7.05. Notice of Defaults................................... 41
Section 7.06. Reports by Trustee to Holders........................ 41
Section 7.07. Compensation and Indemnity........................... 41
Section 7.08. Replacement of Trustee............................... 42
Section 7.09. Successor Trustee by Merger, Etc..................... 43
Section 7.10. Eligibility; Disqualification........................ 43
Section 7.11. Preferential Collection of Claims Against Company.... 43
ARTICLE EIGHT
DISCHARGE OF INDENTURE............................................... 43
Section 8.01. Termination of Company's Obligations................. 43
Section 8.02. Application of Trust Money........................... 44
Section 8.03. Repayment to Company................................. 44
Section 8.04. Reinstatement........................................ 45
Section 8.05. Survival of Certain Obligations...................... 45
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS.................................. 45
ii
Section 9.01. Without Consent of Holders........................... 45
Section 9.02. With Consent of Holders.............................. 46
Section 9.03. Compliance with Trust Indenture Act.................. 47
Section 9.04. Revocation and Effect of Consents.................... 47
Section 9.05. Notation on or Exchange of Notes..................... 47
Section 9.06. Trustee Protected.................................... 47
ARTICLE TEN
SUBORDINATION OF NOTES............................................... 48
Section 10.01. Notes Subordinated to Senior Indebtedness............ 48
Section 10.02. No Payment on Notes in Certain Circumstances......... 48
Section 10.03. Notes Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or
Reorganization of the Company...................... 49
Section 10.04. Holders to Be Subrogated to Rights of Holders of
Senior Indebtedness................................ 50
Section 10.05. Obligations of the Company Unconditional............. 50
Section 10.06. Trustee Entitled to Assume Payments, Not Prohibited
in Absence of Notice............................... 50
Section 10.07. Application by Trustee of Assets Deposited With It... 51
Section 10.08. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior
Indebtedness....................................... 51
Section 10.09. Holders Authorize Trustee to Effectuate
Subordination of Notes............................. 51
Section 10.10. Right of Trustee to Hold Senior Indebtedness......... 51
Section 10.11. Article Ten Not to Prevent Events of Default......... 52
Section 10.12. Payment.............................................. 52
Section 10.13. Trustee Not Fiduciary for Holders of Senior
Indebtedness....................................... 52
ARTICLE ELEVEN
GUARANTEES........................................................... 52
Section 11.01. Unconditional Guarantee.............................. 52
Section 11.02. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms...................................... 53
Section 11.03. Addition of Subsidiary Guarantors.................... 54
Section 11.04. Release of a Subsidiary Guarantor.................... 54
Section 11.05. Limitation of Subsidiary Guarantor's Liability....... 54
Section 11.06. Contribution......................................... 54
Section 11.07. Execution and Delivery of Guarantee.................. 55
Section 11.08. Severability......................................... 55
Section 11.09. Consent to Jurisdiction and Service of Process....... 55
Section 11.10. Waiver of Immunity................................... 55
Section 11.11. Judgment Currency.................................... 56
ARTICLE TWELVE
SUBORDINATION OF GUARANTEES.......................................... 56
Section 12.01. Guarantees Subordinated to Senior Indebtedness....... 56
Section 12.02. No Payment on Guarantees in Certain Circumstances.... 56
Section 12.03. Guarantees Subordinated to Prior Payment of All
Senior Indebtedness on Dissolution, Liquidation or
Reorganization of a Subsidiary Guarantor........... 57
Section 12.04. Holders to Be Subrogated to Rights of Holders of
Senior Indebtedness................................ 58
Section 12.05. Guarantees Unconditional............................. 58
Section 12.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.................................. 59
Section 12.07. Application by Trustee of Assets Deposited With It... 59
Section 12.08. Subordination Rights Not Impaired by Acts or
Omissions of the Subsidiary Guarantors or Holders
of Senior Indebtedness............................. 59
iii
Section 12.09. Holders Authorize Trustee to Effectuate Subordination
of Notes........................................... 60
Section 12.10. Right of Trustee to Hold Senior Indebtedness......... 60
Section 12.11. Payment.............................................. 60
Section 12.12. Trustee Not Fiduciary for Holders of Senior
Indebtedness....................................... 60
ARTICLE THIRTEEN
MISCELLANEOUS........................................................ 61
Section 13.01. Trust Indenture Act Controls......................... 61
Section 13.02. Notices.............................................. 61
Section 13.03. Communication by Holders with Other Holders.......... 61
Section 13.04. Certificate and Opinion as to Conditions Precedent... 62
Section 13.05. Statements Required in Certificate or Opinion........ 62
Section 13.06. Rules by Trustee and Agents.......................... 62
Section 13.07. Legal Holidays....................................... 62
Section 13.08. Governing Law........................................ 62
Section 13.09. No Adverse Interpretation of Other Agreements........ 62
Section 13.10. No Recourse Against Others........................... 63
Section 13.11. Successors........................................... 63
Section 13.12. Duplicate Originals.................................. 63
Section 13.13. Severability......................................... 63
Exhibit A - Form of Initial Note
Exhibit B - Form of Exchange Note
iv
CROSS-REFERENCE TABLE
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------- ---------
310(a)(1)...................................................................7.10
(a)(2)....................................................................N/A
(a)(3)....................................................................N/A
(a)(4)....................................................................N/A
(a)(5)...................................................................7.08
(b)......................................................................7.10
(c).......................................................................N/A
311(a)......................................................................7.11
(b)......................................................................7.11
(c).......................................................................N/A
312(a).......................................................................N/A
(b).....................................................................13.03
(c).....................................................................13.03
313(a)......................................................................7.06
(b)(1)....................................................................N/A
(b)(2)...................................................................7.06
(c)......................................................................7.06
(d).......................................................................N/A
314(a)................................................................4.02; 4.03
(b).......................................................................N/A
(c)(1)....................................................................N/A
(c)(2)....................................................................N/A
(c)(3)....................................................................N/A
(d).......................................................................N/A
(e).......................................................................N/A
(f).......................................................................N/A
315(a).......................................................................N/A
(b).......................................................................N/A
(c).......................................................................N/A
(d).......................................................................N/A
(e).......................................................................N/A
316(a)(1)(A).................................................................N/A
(a)(1)(B).................................................................N/A
(a)(2)....................................................................N/A
(b).......................................................................N/A
(c).......................................................................N/A
317(a)(1)....................................................................N/A
(a)(2)....................................................................N/A
(b).......................................................................N/A
318(a).......................................................................N/A
(b).......................................................................N/A
(c).....................................................................13.01
------------------------
N/A means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
v
INDENTURE, dated as of May 14, 2002, among GIANT INDUSTRIES, INC., a
Delaware corporation (the "Company"), the SUBSIDIARY GUARANTORS listed as
signatories hereto, and The Bank of New York, a New York banking corporation, as
Trustee.
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance, initially, of up to $200,000,000
aggregate principal amount of the Company's 11% Senior Subordinated Notes due
2012 (the "Notes") issuable as provided in this Indenture. All actions necessary
to make this Indenture a valid and legally binding agreement of the Company and
each Subsidiary Guarantor, in accordance with its terms, have been taken.
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means any sale, capitalized lease (in accordance with GAAP),
transfer, exchange or other disposition (or series of related sales, capitalized
leases (in accordance with GAAP), transfers, exchanges or dispositions) of
shares of Capital Stock of a Subsidiary (other than directors' qualifying
shares), or of property or assets or any interests therein (each referred to for
purposes of this definition as a "disposition") by the Company or any of its
Restricted Subsidiaries, including any disposition by means of a merger,
consolidation or similar transaction (other than (i) by the Company to a
Restricted Subsidiary or by a Restricted Subsidiary to the Company or to a
Restricted Subsidiary, (ii) a sale of inventory or hydrocarbons or other
products (including both crude and refined products), in each case in the
ordinary course of business of the Company's or a Restricted Subsidiary's
operations, (iii) the merger or consolidation of, or the disposition of all or
substantially all of the assets of, the Company made in compliance with Article
Five of this Indenture and (iv) the merger or consolidation of a Restricted
Subsidiary made in compliance with the requirements set forth in Section
11.02(b)(i)(A)).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness, the quotient obtained by dividing (i) the sum of the products of
(A) the number of years from such date to the date of each successive scheduled
principal payment of such Indebtedness multiplied by (B) the amount of such
principal payment by (ii) the sum of all such principal payments.
"Bank Credit Facility" means a revolving credit and/or letter of credit
and/or bankers' acceptance facility, the proceeds of which are used for working
capital and other general corporate purposes existing on the Issue Date or
entered into after the Issue Date by one or more of the Company and/or its
Restricted Subsidiaries and one or more financial institutions, as amended,
extended or refinanced from time to time.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized to act on behalf of the Board of Directors of such
Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Borrowing Base" means, as of any date, an amount equal to the sum of (i)
85% of the book value of all accounts receivable owned by the Company and its
Restricted Subsidiaries (excluding any accounts receivable from an Affiliate of
the Company or that are more than 90 days past due, less (without duplication)
the allowance for doubtful accounts attributable to such current accounts
receivable) and (ii) 60% of the book value of all inventory owned by the Company
and its Restricted Subsidiaries as of such date, all calculated on a
consolidated basis and in accordance with GAAP. To the extent that information
is not available as to the amount of accounts receivable as of a specific date,
the Company may utilize the most recent available information for purposes of
calculating the Borrowing Base.
"Business Day" means any day on which the New York Stock Exchange, Inc. is
open for trading and which is not a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock or partnership interests and any and all warrants, options and rights with
respect thereto (whether or not currently exercisable), including each class of
common stock and preferred stock of such Person.
"Capitalized Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under a lease of property, real or
personal, that is required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Change of Control" means any event or series of events by which (i) any
"Person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act) of 50% or more of the total voting power of the Voting Stock
of the Company; (ii) the Company consolidates with or merges or amalgamates with
or into another Person or conveys, transfers, or leases all or substantially all
of its assets to any Person, or any Person consolidates with, or merges or
amalgamates with or into the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is changed into
or exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding Voting Stock of the Company is changed
into or exchanged for Voting Stock of the surviving corporation which is not
Disqualified Stock and (B) the holders of the Voting Stock of the Company
immediately prior to such transaction own, directly or indirectly, not less than
a majority of the Voting Stock of the surviving corporation immediately after
such transaction; (iii) the stockholders of the Company approve any plan of
liquidation or dissolution of the Company; or (iv) during any period of twelve
consecutive months, individuals who at the beginning of such period constituted
the Board of Directors of the Company (or whose appointment or nomination for
election by the stockholders of the Company was approved by a vote of not less
than a majority of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office.
"Commission" means the Securities and Exchange Commission.
"Company" means the party named as such above, until a successor replaces
such Person in accordance with the terms of this Indenture, and thereafter means
such successor.
"Consolidated Coverage Ratio" means, for any Reference Period, the ratio
on a pro forma basis of (i) Consolidated EBITDA for such Reference Period to
(ii) Consolidated Interest Expense for such Reference Period; provided that, in
calculating Consolidated EBITDA and Consolidated Interest Expense (A) with
respect to any acquisition or disposition which occurs during the Reference
Period or subsequent to the Reference Period and on or prior to the date of the
incurrence of Indebtedness giving rise to the need to calculate the Consolidated
2
Coverage Ratio (the "Debt Incurrence Date"), such acquisition or disposition
shall be assumed to have occurred on the first day of the Reference Period, (B)
with respect to the incurrence of any Indebtedness (including the Notes) during
the Reference Period or subsequent to the Reference Period and on or prior to
the Debt Incurrence Date, the incurrence of such Indebtedness shall be assumed
to have occurred on the first day of such Reference Period, (C) any Indebtedness
that had been outstanding during the Reference Period that has been repaid on or
prior to the Debt Incurrence Date shall be assumed to have been repaid as of the
first day of such Reference Period, (D) the Consolidated Interest Expense
attributable to interest or dividends on any Indebtedness bearing a floating
interest (or dividend) rate shall be computed on a pro forma basis as if the
rate in effect on the Debt Incurrence Date were the average rate in effect
during the entire Reference Period, and (E) in determining the amount of
Indebtedness pursuant to Section 4.09, the incurrence of Indebtedness giving
rise to the need to calculate the Consolidated Coverage Ratio and, to the extent
the net proceeds from the incurrence or issuance thereof are used to retire
Indebtedness, the application of the proceeds therefrom, shall be assumed to
have occurred on the first day of the Reference Period.
"Consolidated EBITDA" means, for any Reference Period, the Consolidated
Net Income of the Company and its Restricted Subsidiaries for such Reference
Period, increased (to the extent deducted in determining Consolidated Net
Income) by the sum of: (i) all income taxes of the Company and its Restricted
Subsidiaries paid or accrued according to GAAP for such period (other than
income taxes attributable to extraordinary gains or losses), (ii) all interest
expense of the Company and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (including amortization of original issue
discount and other non-cash interest expense), (iii) depreciation and depletion
of the Company and its Restricted Subsidiaries, (iv) amortization of the Company
and its Restricted Subsidiaries including, without limitation, amortization of
capitalized debt issuance costs, (v) other non-recurring non-cash charges
(excluding any such non-cash charges to the extent they require an accrual of,
or a reserve for, cash charges for any future periods) to the extent such
non-cash charges are deducted in connection with the determination of
Consolidated Net Income minus non-cash items increasing such Consolidated Net
Income, and (vi) extraordinary losses to the extent deducted in connection with
the determination of Consolidated Net Income.
"Consolidated Interest Expense" means, with respect to the Company and its
Restricted Subsidiaries, for any Reference Period, the aggregate amount (without
duplication) of (i) interest expensed or capitalized in accordance with GAAP
(including, in accordance with the following sentence, interest attributable to
Capitalized Lease Obligations) during such period in respect of all Indebtedness
of the Company and its Restricted Subsidiaries (including (A) amortization of
original issue discount on any Indebtedness, (B) the interest portion of all
deferred payment obligations, calculated in accordance with GAAP, and (C) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptance financing and currency and interest rate swap arrangements, in each
case to the extent attributable to such Reference Period), and (ii) dividend
requirements of the Company and its Restricted Subsidiaries with respect to
Disqualified Stock of the Company or its Restricted Subsidiaries, whether in
cash or otherwise (except dividends payable solely in shares of Qualified
Stock), paid (other than to the Company or any of its Restricted Subsidiaries),
declared, accrued or accumulated during such period, divided by the difference
of one minus the applicable actual combined federal state, local and foreign
income tax rate of the Company and its Restricted Subsidiaries (expressed as a
decimal), on a consolidated basis, for the four quarters immediately preceding
the date of the transaction giving rise to the need to calculate Consolidated
Interest Expense, in each case to the extent attributable to such Reference
Period and excluding items eliminated in consolidation. For purposes of this
definition, (i) interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by the Company to be the rate
of interest implicit in such Capitalized Lease Obligation in accordance with
GAAP and (ii) interest expense attributable to any Indebtedness represented by
the guarantee by the Company or a Restricted Subsidiary of the Company of an
obligation of another Person shall be deemed to be the interest expense
attributable to the Indebtedness guaranteed.
"Consolidated Net Income" means, for any period, the aggregate net income
(or loss) of the Company and its Restricted Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP, provided that (i) the
net income for such period of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting will be included only
to the extent of the amount of dividends, payments or distributions actually
paid to the Company or its Restricted Subsidiaries by such other Person in such
period; (ii) the net income for such period of any Restricted Subsidiary of the
Company that is subject to any Payment Restriction will be included only to the
extent of the amount of dividends, payments or distributions which (A) are
actually paid by such
3
Restricted Subsidiary in such period to the Company (or another Restricted
Subsidiary which is not subject to a Payment Restriction) and (B) are not in
excess of the amount which such Restricted Subsidiary would be permitted to pay
to the Company (or another Restricted Subsidiary which is not subject to a
Payment Restriction) in any future period under the Payment Restrictions
applicable to such Restricted Subsidiary, assuming that the net income of such
Restricted Subsidiary in each future period is equal to the net income for such
Restricted Subsidiary for such period; and (iii) the following will be excluded:
(A) any net gain or loss on the sale or other disposition by the Company or any
of its Restricted Subsidiaries of assets (other than a sale of inventory or
hydrocarbons or other products (including both crude and refined products), in
each case in the ordinary course of business of the Company's operations) and of
the Capital Stock of any Restricted Subsidiary of the Company, (B) the net
income (or loss) of any other Person acquired by the Company or any Restricted
Subsidiary prior to the date of such acquisition, (C) extraordinary gains, and
(D) the $5.4 million reserve recorded in 2001 for a related party note and
interest thereon.
"Consolidated Net Tangible Assets" means, as of any date, the total assets
of the Company and its Restricted Subsidiaries on a consolidated basis as of
such date (less applicable reserves and other items properly deductible from
total assets) and after deducting therefrom: (i) total liabilities and total
capital items as of such date except the following: items constituting
Indebtedness, paid-in capital and retained earnings, provisions for deferred
income taxes and deferred gains, and reserves which are not reserves for any
contingencies not allocated to any particular purpose; (ii) goodwill, trade
names, trademarks, patents, unamortized debt discount and expense, and other
intangible assets; and (iii) all Investments other than Permitted Investments.
"Consolidated Tangible Net Worth" means, with respect to any Person, as at
any date of determination, the sum of Capital Stock (other than Disqualified
Stock) and paid-in capital plus retained earnings (or minus accumulated deficit)
minus all intangible assets, including, without limitation, organization costs,
patents, trademarks, copyrights, franchise, research and development costs, and
any amount reflected in treasury stock, of such Person determined on a
consolidated basis in accordance with GAAP.
"Credit Agreements" means the Company's three year, senior secured
revolving credit facility in the amount of $100,000,000 and the Company's three
year, senior mortgage loan facility in the amount of $40,000,000, and in each
case as amended, extended or refinanced from time to time.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees and their
respective successors.
"Designated Senior Indebtedness" means (i) any Senior Indebtedness of the
Company and/or any Subsidiary Guarantor permitted under this Indenture, the
original principal amount of which is $10 million or more and (ii) the
Indebtedness and/or other obligations under the Credit Agreements or a Bank
Credit Facility.
"Disqualified Stock" means any Capital Stock of a Person which, by its
terms (or by terms of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event or with the passage of
time, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the Maturity Date or which is exchangeable
or convertible into debt securities of such Person or any other Person, except
to the extent that such exchange or conversion rights cannot be exercised prior
to the Maturity Date.
"Domestic Subsidiary" means any Restricted Subsidiary that was formed
under the laws of the United States or any state thereof or the District of
Columbia or that guarantees or otherwise provides direct credit support for any
Indebtedness of the Company or any Subsidiary Guarantor.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Commission thereunder.
4
"Exchange Offer" means an offer by the Company, pursuant to a Registration
Rights Agreement, to Holders of Initial Notes to issue and deliver to such
Holders, in exchange for the Initial Notes, a like aggregate principal amount of
Exchange Notes registered under the Securities Act.
"Exchange Notes" means Notes to be issued pursuant to this Indenture in
connection with an Exchange Offer pursuant to the relevant Registration Rights
Agreement.
"Existing Subordinated Notes" means $150 million in original principal
amount of the Company's 9% Senior Subordinated Notes due 2007.
"Former Affiliate" means any Person who was an Affiliate of the Company at
any time during the three year period prior to the date for which determination
of Affiliate status is required.
"GAAP" means generally accepted accounting principles as in effect in the
United States of America from time to time.
"Guarantee" means, individually and collectively, the guarantees given by
the Subsidiary Guarantors pursuant to Article Eleven hereof, including a
notation in the Notes substantially in the form attached hereto as Exhibit A.
"Holder" means a Person in whose name a Note is registered on the
Registrar's books.
"Indebtedness" means, without duplication, with respect to any Person, (i)
all obligations of such Person (A) in respect of borrowed money (whether or not
the recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof), (B) evidenced by bonds, notes, debentures or similar
instruments, (C) representing the balance deferred and unpaid of the purchase
price of any property or services (other than accounts payable or other
obligations arising in the ordinary course of business), (D) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks, (E) for
the payment of money relating to a Capitalized Lease Obligation, or (F)
evidenced by a letter of credit or a reimbursement obligation of such Person
with respect to any letter of credit; (ii) all net obligations of such Person as
of the date of a required calculation under interest swap obligations and
foreign currency xxxxxx, other than interest rate swap obligations and foreign
currency xxxxxx incurred to protect the Company or its Restricted Subsidiaries
from fluctuations in interest rates or foreign currency exchange rates; (iii)
all liabilities of others of the kind described in the preceding clauses (i) or
(ii) that such Person has guaranteed or that are otherwise its legal liability;
(iv) Indebtedness (as otherwise defined in this definition) of another Person
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person, the amount of such obligations being deemed to be the
lesser of (A) the full amount of such obligations so secured, and (B) the fair
market value of such asset, as determined in good faith by the Board of
Directors of such Person, which determination shall be evidenced by a Board
Resolution of such Person; (v) the liquidation preference and any mandatory
redemption payment obligations in respect of Disqualified Stock of such Person;
and (vi) any and all deferrals, renewals, extensions, refinancings and
refundings (whether direct or indirect) of, or amendments, modifications or
supplements to, any liability of the kind described in any of the preceding
clauses (i), (ii), (iii), (iv), (v) or this clause (vi), whether or not between
or among the same parties.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"Initial Notes" means up to $200 million principal amount of Notes that
are issued pursuant to this Indenture on the Issue Date and shall include any
other Notes issued under this Indenture after the Issue Date in a private
placement.
"Initial Purchasers" means Banc of America Securities LLC, BNP Paribas
Securities Corp. and Fleet Securities, Inc.
5
"Insolvency or Liquidation Proceeding" means, with respect to any Person,
(i) an insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization proceeding or other similar case or proceeding,
relative to such Person, as such, or its assets, or (ii) any liquidation,
dissolution, reorganization proceeding or winding up of such Person (other than
any reincorporation of such Person in another jurisdiction), whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (iii)
any assignment for the benefit of creditors or any other marshaling of assets
and liabilities of such Person.
"Investment" of any Person means (i) all investments by such Person in any
other Person in the form of loans, advances or capital contributions (excluding
advances to employees in the ordinary course of business other than advances to
present or Former Affiliates of the Company in an aggregate amount outstanding
at any one time not to exceed $1 million), (ii) all guarantees of Indebtedness
or other obligations of any other Person by such Person, (iii) all purchases (or
other acquisitions for consideration) by such Person of Indebtedness, Capital
Stock or other securities of any other Person and (iv) all other items that
would be classified as investments or advances on a balance sheet of such Person
prepared in accordance with GAAP.
"Issue Date" means the date on which the Notes are originally issued under
this Indenture.
"Lien" means, with respect to any Person, any mortgage, pledge, lien,
encumbrance, easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real or personal
property of such Person, or a security interest of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option, right of first refusal or other similar agreement to sell,
in each case securing obligations of such Person, and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statute or statutes) of any jurisdiction).
"Make-Whole Premium" means, with respect to a Note on any date of
redemption, the greater of (x) 1% of the principal amount of such Note or (y)
the excess of (A) the present value at such date of redemption of (1) the
redemption price of such Note at May 15, 2007 (such redemption price being
described under Paragraph 6 of the Note) plus (2) all remaining required
interest payments (exclusive of interest accrued and unpaid to the date of
redemption) due on such Note through May 15, 2007, computed using a discount
rate equal to the Treasury Rate plus 50 basis points, over (B) the then
outstanding principal amount of such Note.
"Maturity Date" means May 15, 2012.
"Net Available Proceeds" means, with respect to any Asset Sale of any
Person, cash proceeds received (including any cash proceeds received by way of
deferred payment of principal pursuant to a note or installment receivable or
otherwise, but only as and when received, and excluding any other consideration
until such time as such consideration is converted into cash) therefrom, in each
case net of all legal, title and recording tax expenses, commissions and other
fees and expenses incurred, and all federal, state or local taxes required to be
accrued as a liability as a consequence of such Asset Sale, and in each case net
of all Indebtedness which is secured by such assets, in accordance with the
terms of any Lien upon or with respect to such assets, or which must, by its
terms or in order to obtain a necessary consent to such Asset Sale to prevent a
default or event of default under Senior Indebtedness or by applicable law, be
repaid out of the proceeds from such Asset Sale and which is actually so repaid.
"Net Cash Proceeds" means, in the case of any sale by the Company of
securities pursuant to clause (B) or (C) of Section 4.10(a)(iii), the aggregate
net cash proceeds received by the Company, after payment of expenses,
commissions, discounts and any other transaction costs incurred in connection
therewith.
"Notes" means any of the securities, as defined in the first paragraph of
the recitals hereof, that are authenticated and delivered under this Indenture.
For all purposes of this Indenture, the term "Notes" shall include the Initial
Notes issued on the Issue Date, any Exchange Notes to be issued and exchanged
for any Initial Notes pursuant to a Registration Rights Agreement and this
Indenture, and any other Notes issued after the Issue Date under this Indenture.
For purposes of this Indenture, all Notes shall vote together as one series of
Notes under this Indenture.
6
"Notes Custodian" means the custodian with respect to a Global Note (as
appointed by the Depository), or any successor person thereto and shall
initially be the Trustee.
"Officer" means, with respect to any Person, the Chairman of the Board,
the President, any Vice President, the Chief Financial Officer or the Treasurer
of such Person.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Officers, one of which must be the principal executive, principal
financial or principal accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company (or any Subsidiary
Guarantor, if applicable).
"Pari Passu Indebtedness" means the Existing Subordinated Notes and any
other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Notes in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of the Company, which is not Senior Indebtedness.
"Permitted Business Investments" means (i) Investments by the Company or
any Restricted Subsidiary in any Person which immediately prior to the making of
such Investment is a Restricted Subsidiary; (ii) Investments in the Company by
any Restricted Subsidiary; and (iii) Investments by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such
Investment (A) such Person becomes a Restricted Subsidiary of the Company or (B)
such Person is merged, consolidated or amalgamated with or into, or transfers or
conveys all or substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company; (iv) Investments arising in
connection with interest rate protection agreements, foreign currency hedging
agreements and commodity hedging agreements incurred in the ordinary course of
business for the purpose of fixing or hedging interest rate, currency or
commodity risk in connection with the conduct of the business of the Company and
its Restricted Subsidiaries and not for speculative purposes; and (v)
Investments received by the Company or any Restricted Subsidiary in connection
with Asset Sales, provided that the aggregate fair market value of all
Investments permitted pursuant to this clause (v) after the Issue Date shall not
exceed $5 million in the aggregate.
"Permitted Company Refinancing Indebtedness" means (i) Indebtedness of the
Company, the terms of which have been amended, modified or supplemented in a
manner that does not (A) affect the priority of such Indebtedness in right of
payment in relation to the Notes, (B) accelerate the maturity of such
Indebtedness or (C) shorten the Average Life of such Indebtedness and (ii)
Indebtedness of the Company, the net proceeds of which are used to renew,
extend, refinance, defease, refund or repurchase outstanding Indebtedness of the
Company, provided that (A) if the Indebtedness (including the Notes) being
renewed, extended, refinanced, defeased refunded or repurchased is pari passu
with or subordinated in right of payment to the Notes then such Indebtedness is
pari passu with or subordinated in right of payment to, as the case may be, the
Notes at least to the same extent as the Indebtedness being renewed, extended,
refinanced, defeased, refunded or repurchased, (B) such Indebtedness is
scheduled to mature no earlier than the Indebtedness being renewed, extended,
refinanced, defeased, refunded or repurchased, and (C) such Indebtedness has an
Average Life at the time such Indebtedness is incurred that is equal to or
greater than the remaining Average Life of the Indebtedness being renewed,
extended, refinanced, defeased, refunded or repurchased; provided further that
such Indebtedness (to the extent that such Indebtedness constitutes Permitted
Company Refinancing Indebtedness) is in an aggregate principal amount (or, if
such Indebtedness is issued at a price less than the principal amount thereof,
the aggregate amount of gross proceeds therefrom is) not in excess of the
aggregate principal amount then outstanding of the Indebtedness being renewed,
extended, refinanced, defeased, refunded or repurchased (or if the Indebtedness
being renewed, extended, refinanced, defeased, refunded or repurchased was
issued at a price less than the principal amount thereof, then not in excess of
the amount of liability in respect thereof determined in accordance with GAAP).
"Permitted Financial Investments" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof, (iii) certificates
of deposit and eurodollar time deposits with maturities of 12 months or less
from the date of acquisition, bankers' acceptances with maturities not exceeding
12 months and overnight bank deposits, in each case with any domestic
7
commercial bank having capital and surplus in excess of $300 million, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper rated at least A-2 or the equivalent thereof
at the time of purchase by Standard & Poor's or rated at least P-2 or the
equivalent at the time of purchase by Xxxxx'x Investors Service, Inc., and in
each case maturing within 12 months after the date of acquisition, (vi) money
market mutual or similar funds having assets in excess of $100 million and (vii)
any debt securities or adjustable rate preferred stock issued by a corporation
organized under the laws of a state of the United States of America or issued by
any state, county or municipality located in the United States of America which
is rated at least AA- or the equivalent thereof by Xxxxx'x Investors Service,
Inc. and Standard & Poor's Corporation and maturing or having a call provision
not exceeding 24 months from the date of acquisition.
"Permitted Investments" means Permitted Business Investments and Permitted
Financial Investments.
"Permitted Liens" means (i) Liens existing on the Issue Date; (ii) Liens
now or hereafter securing Senior Indebtedness; (iii) Liens now or hereafter
securing any interest rate hedging obligations (A) that the Company is required
to enter into with respect to the Bank Credit Facility or (B) that are entered
into for the purpose of managing interest rate risk with respect to Indebtedness
of the Company and its Restricted Subsidiaries, provided that such interest rate
obligations under clauses (A) and (B) do not have an aggregate notional amount
which exceeds the aggregate principal amount of Indebtedness of the Company and
its Restricted Subsidiaries; (iv) Liens securing obligations under agreements
that the Company enters into in the ordinary course of business for the purpose
of protecting against fluctuations in oil, natural gas or refined products; (v)
Liens securing Indebtedness, the proceeds of which are used to refinance secured
Indebtedness of the Company or its Restricted Subsidiaries; provided that such
Liens extend to or cover only the property or assets currently securing the
Indebtedness being refinanced; (vi) Liens for taxes, assessments and
governmental charges not yet delinquent or being contested in good faith and for
which adequate reserves have been established to the extent required by GAAP;
(vii) mechanics', workmen's, materialmen's, operator's or similar Liens arising
in the ordinary course of business for sums that are not yet delinquent or are
being contested in good faith by appropriate action; (viii) Liens in connection
with workmen's compensation, unemployment insurance or other social security,
old age pension or public liability obligations not yet due or which are being
contested in good faith by appropriate action; (ix) Liens, deposits or pledges
to secure the performance of bids, tenders, contracts (other than contracts for
the payment of money), leases, public or statutory obligations, surety, stay,
appeal, indemnity, performance or other similar bonds, or other similar
obligations arising in the ordinary course of business; (x) survey exceptions,
encumbrances, easements or reservations of, or rights of others for, rights of
way, zoning or other restrictions as to the use of real properties, and minor
defects in title which, in the case of any of the foregoing, were nor incurred
or created to secure the payment of borrowed money or the deferred purchase
price of property or services, and in the aggregate do not materially adversely
affect the value of such properties or materially impair use for the purposes of
which such properties are held by the Company or any Restricted Subsidiaries;
(xi) Liens on, or related to, properties to secure all or part of the costs
incurred in the ordinary course of business of exploration, drilling,
development or operation thereof; (xii) Liens on pipeline or pipeline facilities
which arise out of operation of law; (xiii) judgment and attachment Liens not
giving rise to an Event of Default or Liens created by or existing from any
litigation or legal proceeding that are currently being contested in good faith
by appropriate proceedings and for which adequate reserves have been established
to the extent required by GAAP; (xiv) (A) Liens upon any property of any Person
existing at the time of acquisition thereof by the Company or a Subsidiary, (B)
Liens upon any property of a Person existing at the time such Person is merged
or consolidated with the Company or any Restricted Subsidiary or existing at the
time of the sale or transfer of any such property of such Person to the Company
or any Restricted Subsidiary, or (C) Liens upon any property of a Person
existing at the time such Person becomes a Restricted Subsidiary; provided that
in each case such Lien has not been created in contemplation of such sale,
merger, consolidation, transfer or acquisition; and provided further that in
each such case no such Lien shall extend to or cover any property of the Company
or any Subsidiary other than the property being acquired and improvements
thereon; (xv) Liens on deposits to secure public or statutory obligations or in
lieu of surety or appeal bonds entered into in the ordinary course of business;
(xvi) Liens in favor of collecting or payor banks having a right of setoff,
revocation, refund or chargeback with respect to money or instruments of the
Company or any Restricted Subsidiary on deposit with or in possession of such
bank; (xvii) purchase money Liens granted in connection with the acquisition of
fixed assets in the ordinary course of business and consistent with past
practices, provided that (A) such Liens attach only to the property so acquired
with the purchase money indebtedness secured thereby and (B) such Liens secure
only Indebtedness that is not in excess
8
of 100% of the purchase price of such fixed assets; (xviii) Liens reserved in
oil and gas mineral leases for bonus or rental payments and for compliance with
the terms of such leases; (xix) Liens arising under partnership agreements, oil
and gas leases, farm-out agreements, division orders, contracts for the sale,
purchase, exchange, transportation or processing of oil, gas or other
hydrocarbons, unitization and pooling declarations and agreements, development
agreements, operating agreements, area of mutual interest agreements, and other
agreements which are customary in the Principal Business; and (xx) other Liens,
provided that such other Liens shall not secure obligations in excess of $5.0
million in the aggregate at any one time outstanding.
"Permitted Subsidiary Refinancing Indebtedness" means (i) Indebtedness of
any Subsidiary, the terms of which have been amended, modified or supplemented
in a manner that does not (A) affect the priority of such Indebtedness in right
of payment in relation to the Guarantees, (B) accelerate the maturity of such
Indebtedness or (C) shorten the Average Life of such Indebtedness and (ii)
Indebtedness of any Subsidiary, the net proceeds of which are used to renew,
extend, refinance, defease, refund or repurchase outstanding Indebtedness of
such Subsidiary, provided that (A) if the Indebtedness (including any guarantee
thereof) being renewed, extended, refinanced, defeased, refunded or repurchased
is pari passu with or subordinated in right of payment to the Guarantees, then
such Indebtedness is pari passu with or subordinated in right of payment to, as
the case may be, the Guarantees at least to the same extent as the Indebtedness
being renewed, extended, refinanced, defeased, refunded or repurchased, (B) such
Indebtedness is scheduled to mature no earlier than the Indebtedness being
renewed, extended, refinanced, defeased, refunded or repurchased, and (C) such
Indebtedness has an Average Life at the time such Indebtedness is incurred that
is equal to or greater than the remaining Average Life of the Indebtedness being
renewed, extended, refinanced, defeased, refunded or repurchased; provided
further that such Indebtedness (to the extent that such Indebtedness constitutes
Permitted Subsidiary Refinancing Indebtedness) is in an aggregate principal
amount (or, if such Indebtedness is issued at a price less than the principal
amount thereof, the aggregate amount of gross proceeds therefrom is) not in
excess of the aggregate principal amount then outstanding under the Indebtedness
being renewed, extended, refinanced, defeased, refunded or repurchased (or if
the Indebtedness being renewed, extended, refinanced, defeased, refunded or
repurchased was issued at a price less than the principal amount thereof, then
not in excess of the amount of liability in respect thereof determined in
accordance with GAAP).
"Person" means any individual, corporation, partnership, joint venture,
trust, estate, unincorporated organization or government or any agency or
political subdivision thereof.
"Post-Commencement Interest" means all interest accrued or accruing after
the commencement of any Insolvency or Liquidation Proceeding in accordance with
and at the contract rate (including, without limitation, any rate applicable
upon default) specified in the agreement or instrument creating, evidencing, or
governing any Senior Indebtedness, whether or not, pursuant to applicable law or
otherwise, the claim for such interest is allowed as a claim in such Insolvency
or Liquidation Proceeding.
"Principal Business" means (i) the business of the exploration for, and
development, acquisition, production, processing, marketing, refining, storage
and transportation of, hydrocarbons, (ii) any related energy and natural
resource business, (iii) any business currently engaged in by the Company or its
Subsidiaries, (iv) convenience stores, retail service stations, truck stops and
other public accommodations in connection therewith, and (v) any activity or
business that is a reasonable extension, development or expansion of any of the
foregoing.
"pro forma" means, with respect to any calculation made or required to be
made pursuant to the terms of this Indenture, a calculation in accordance with
the rules and regulations under the Securities Act.
"Public Equity Offering" means an underwritten primary public offering of
common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Publicly Traded Stock" means, with respect to any Person, Voting Stock of
such Person which is registered under Section 12 of the Exchange Act and which
is actively traded on the New York Stock Exchange or American Stock Exchange or
quoted in the National Association of Securities Dealers Automated Quotation
System (National Market System).
9
"Qualified Stock" means any Capital Stock that is not Disqualified Stock.
"Reference Period" means, with respect to any Person, the four full fiscal
quarters ended immediately preceding any date upon which any determination is to
be made pursuant to the terms of the Notes or the Indenture.
"Registration Rights Agreement" means the Registration Rights Agreement
dated May 14, 2002 among the Company, the Subsidiary Guarantors and the Initial
Purchasers, or any other Registration Rights Agreement executed in connection
with the issuance of Initial Notes after the Issue Date, as the case may be.
"Representative" means the indenture trustee or other trustee, agent or
representative of holders of any Senior Indebtedness.
"Restricted Payment" means, with respect to any Person, any of the
following: (i) any dividend or other distribution in respect of such Person's
Capital Stock (other than (A) dividends or distributions payable solely in
Capital Stock (other than Disqualified Stock) of such Person and (B) in the case
of Restricted Subsidiaries of the Company, dividends or distributions payable to
the Company or to a Restricted Subsidiary of the Company that is a Wholly Owned
Subsidiary); (ii) the purchase, redemption or other acquisition or retirement
for value of any Capital Stock, or any option, warrant, or other right to
acquire shares of Capital Stock, of the Company or any of its Restricted
Subsidiaries other than any such purchase, redemption or other acquisition or
retirement for value by the Company or any Restricted Subsidiary of the Company
that is a Wholly Owned Subsidiary of any Capital Stock, or, any option, warrant
or other right to acquire shares of Capital Stock, of any Restricted Subsidiary
with respect to such Capital Stock, option, warrant or other right which is
owned, at the time of any such transaction, by the Company or another Restricted
Subsidiary; (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any Indebtedness which is pari passu or subordinated in right of
payment to the Notes or any Guarantee, except that any such payment, purchase,
defeasance, repurchase, redemption or other acquisition or retirement for value
of Pari Passu Indebtedness shall not constitute a Restricted Payment unless the
Indebtedness, if any, incurred to refinance such Pari Passu Indebtedness is
senior in right of payment to the Notes or any Guarantee or is scheduled to
mature earlier than, or has an Average Life less than the remaining Average Life
of, the Indebtedness being refinanced; and (iv) the making by such Person of any
Investment other than a Permitted Investment.
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary. The Company may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary by a Board Resolution of the Company, as evidenced
by written notice thereof delivered to the Trustee; provided, however, that,
immediately after giving effect to such designation, (i) the Company could incur
at least $1.00 in additional Indebtedness pursuant to Section 4.09(a) and (ii)
no Default or Event of Default shall have occurred and be continuing.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Senior Indebtedness" means any Indebtedness (other than the Company's
Existing Subordinated Notes and any Restricted Subsidiary's guarantee thereof)
of a Person (whether outstanding on the date hereof or hereafter incurred),
unless such Indebtedness is stated to be pari passu with or is contractually
subordinate or junior in right of payment to the Notes; provided that Senior
Indebtedness does not include (i) any liability for federal, state, local or
other taxes owed or owing by the Company; (ii) any Indebtedness of the Company
to any of its Subsidiaries or other Affiliates; (iii) any trade payables; or
(iv) the portion of any Indebtedness that is incurred in violation of this
Indenture.
"Shelf Registration Statement" means the registration statement issued by
the Company in connection with the offer and sale of Initial Notes pursuant to
the Registration Rights Agreement.
"Subordinated Securities" means securities of the Company or any
Subsidiary Guarantor that are subordinated, at least to the same extent as the
Notes or the Guarantees, respectively, to Senior Indebtedness of the
10
Company and such Subsidiary Guarantor and to any securities that are issued in
exchange for any such Senior Indebtedness.
"subsidiary" of any Person means (i) a corporation a majority of whose
Voting Stock is at the time, directly or indirectly, owned by such Person, by
one or more subsidiaries of such Person or by such Person and one or more
subsidiaries of such Person, (ii) a partnership in which such Person or a
subsidiary of such Person is, at the date of determination, a general or limited
partner of such partnership, but only if such Person or its subsidiary is
entitled to receive more than 50% of the assets of such partnership upon its
dissolution, or (iii) any other Person (other than a corporation or partnership)
in which such Person, directly or indirectly, at the date of determination
thereof, has (A) at least a majority ownership interest or (B) the power to
elect or direct the election of a majority of the directors or other governing
body of such Person. For purposes of the foregoing definition, an arrangement by
which a Person who owns an interest in an oil and gas property is subject to a
joint operating agreement, processing agreement, net profits interest,
overriding royalty interest, farm-out agreement, development agreement, area of
mutual interest agreement, joint bidding agreement, unitization agreement,
pooling arrangement or other similar agreement or arrangement shall not, in and
of itself, cause such Person to be considered a Subsidiary.
"Subsidiary" means any subsidiary of the Company.
"Subsidiary Guarantor" means (i) each of the Company's Subsidiaries in
existence on the Issue Date, (ii) each of the Subsidiaries that becomes a
guarantor of the Notes in compliance with the provisions of Article Eleven
hereof and (iii) each of the Subsidiaries executing a supplemental indenture in
which such Subsidiary agrees to be bound by the terms of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 9.03.
"Transfer Restricted Notes" means Definitive Notes and Notes that bear or
are required to bear the legend set forth in Section 2.06(d).
"Treasury Rate" means the yield to maturity at the time of computation of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519)
which has become publicly available at least two Business Days prior to the date
fixed for prepayment (or, if such Statistical Release is no longer published,
any publicly available source for similar market data)) most nearly equal to the
then remaining term of the Notes to May 15, 2007, provided, however, that if the
then remaining term to May 15, 2007 is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the then
remaining term of the Notes to May 15, 2007 is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
"Trust Officer" means, when used with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor.
"Unrestricted Subsidiary" means (i) any Subsidiary of an Unrestricted
Subsidiary or (ii) any Subsidiary of the Company or of a Restricted Subsidiary
that is designated as an Unrestricted Subsidiary by a Board Resolution of the
Company in accordance with the following sentence. The Company may designate any
Subsidiary of the Company or of a Restricted Subsidiary (including any
Restricted Subsidiary or any newly formed or newly acquired
11
Subsidiary) to be an Unrestricted Subsidiary by a Board Resolution of the
Company, as evidenced by written notice thereof delivered to the Trustee, if
after giving effect to such designation, (i) the Company could incur $1.00 of
additional Indebtedness pursuant to Section 4.09(a), (ii) the Company could make
an additional Restricted Payment of $1.00 pursuant to Section 4.10(a), (iii)
such Subsidiary does not own or hold any Capital Stock of, or any Lien on any
property of, the Company or any Restricted Subsidiary and (iv) such Subsidiary
is not liable, directly or indirectly, with respect to any Indebtedness other
than Unrestricted Subsidiary Indebtedness and Indebtedness to be released upon
such Subsidiary's designation as an Unrestricted Subsidiary.
"Unrestricted Subsidiary Indebtedness" of any Person means Indebtedness of
such Person (i) as to which neither the Company nor any Restricted Subsidiary is
directly or indirectly liable (by virtue of the Company's or such Restricted
Subsidiary's being the primary obligor, or guarantor of, or otherwise liable in
any respect on, such Indebtedness), (ii) which, with respect to Indebtedness
incurred after the date of this Indenture by the Company or any Restricted
Subsidiary, upon the occurrence of a default with respect thereto, does not
result in, or permit any holder of any Indebtedness of the Company or any
Restricted Subsidiary to declare, a default on such Indebtedness of the Company
or any Restricted Subsidiary and (iii) which is not secured by any assets of the
Company or of any Restricted Subsidiary.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof.
"U.S. Legal Tender" means such coin or currency of the United States as at
the time of payment shall be legal tender for the payment of public and private
debts.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors or other governing body of such Person.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock (other
than directors" qualifying shares, if applicable) of which is owned by the
Company or another Wholly Owned Subsidiary.
Section 1.02. Other Definitions.
Term Defined in Section
"Affiliate Transaction".............................................4.14
"Agent Members".....................................................2.01
"Authorized Agent".................................................11.09
"Bankruptcy Law"....................................................6.01
"Change of Control Notice"..........................................4.16
"Change of Control Offer"...........................................4.16
"Change of Control Payment Date"....................................4.16
"Custodian".........................................................6.01
"Debt Incurrence Date"..............................................1.01
"Definitive Notes"..................................................2.01
"Event of Default"..................................................6.01
"Excess Proceeds"...................................................4.11
"Funding Guarantor"................................................11.06
"Global Note".......................................................2.01
"IAI"...............................................................2.01
"incur".............................................................4.09
12
"Judgment Currency"................................................11.11
"Legal Holiday"....................................................13.07
"Net Proceeds Deficiency"...........................................4.11
"Net Proceeds Offer"................................................4.11
"Net Proceeds Offer Amount".........................................4.11
"Net Proceeds Payment Date".........................................4.11
"Non-U.S. Subsidiary Guarantor"....................................11.09
"Note Register".....................................................2.03
"Offered Price".....................................................4.11
"Pari Passu Indebtedness Amount"....................................4.11
"Pari Passu Offer"..................................................4.11
"Paying Agent"......................................................2.03
"Payment Blockage Period"...................................10.02, 12.02
"Payment Default"...........................................10.02, 12.02
"Payment Notice"............................................10.02, 12.02
"Payment Restriction"...............................................4.13
"Purchase Notice"...................................................4.11
"QIB"...............................................................2.01
"Registrar"........................................................ 2.03
"Regulation S"......................................................2.01
"Rule 144A".........................................................2.01
"Trigger Date"......................................................4.11
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms, if used in this Indenture, have the following meanings:
"Commission" means the Commission.
"indenture securities" means the Notes and the Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the Subsidiary
Guarantors and any other obligor on the Notes or the Guarantees.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meanings assigned to them therein.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
13
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) any gender used in this Indenture shall be deemed to include
the neuter, masculine or feminine genders;
(6) provisions apply to successive events and transactions; and
(7) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other Subdivision.
ARTICLE TWO
THE NOTES
Section 2.01. Form and Dating.
The Initial Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this Indenture. The Exchange Notes issued in
exchange for the Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit B, which is hereby incorporated by
reference and expressly made a part of this Indenture. The Notes may have such
notations, legends or endorsements approved as to form by the Company and
required, as applicable, by law, stock exchange rule, agreements to which the
Company is subject and/or usage. Each Note shall be dated the date of its
authentication. The Notes shall be issuable only in denominations of $1,000 and
integral multiples thereof. The terms of the Notes set forth in Exhibit A and
Exhibit B are part of the terms of this Indenture.
(a) Global Notes. Initial Notes offered and sold to "qualified
institutional buyers" (as defined in Rule 144A under the Securities Act) (a
"QIB") in reliance on Rule 144A under the Securities Act ("Rule 144A") or in
reliance on Regulation S under the Securities Act ("Regulation S"), each shall
be issued initially in the form of permanent global Notes in definitive, fully
registered form without interest coupons (each a "Global Note") with the global
security legend and restricted security legend set forth in Exhibit A hereto,
which shall be deposited on behalf of the purchasers of the Initial Notes
represented thereby with the Trustee, as custodian for the Depository (or with
such other custodian as the Depository may direct), and registered in the name
of the Depository or a nominee of the Depository, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depository
or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to
Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with this
Section 2.01(b), authenticate and deliver initially the Global Notes that (i)
shall be registered in the name of the Depository or the nominee of the
Depository and (ii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instructions or held by the Trustee as custodian
for the Depository.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to the Global Notes held on
their behalf by the Depository or by the Trustee as the custodian of the
Depository or under such Global Notes, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Notes for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices of
such Depository governing the exercise of the rights of a holder of a beneficial
interest in a Global Note.
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(c) Definitive Notes. Except as provided in this Section, Section 2.06
or Section 2.09, owners of beneficial interests in a Global Note will not be
entitled to receive Definitive Notes. Purchasers of Initial Notes who are
institutional "accredited investors" as described in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act (each an "IAI") and who are not QIBs and did not
purchase Initial Notes sold in reliance on Regulation S will receive physical
delivery of certificated Initial Notes (certificated Notes are herein referred
to as "Definitive Notes"); provided, however, that upon transfer of such
Definitive Notes to a QIB or in reliance on Regulation S such Definitive Notes
will, unless the applicable Global Note has previously been exchanged for
Definitive Notes pursuant to Section 2.06 or Section 2.09, be exchanged for an
interest in the Global Note pursuant to the provisions of Section 2.06.
Definitive Notes will bear the restricted securities legend set forth on Exhibit
A unless removed in accordance with Section 2.06(d).
Section 2.02. Execution and Authentication.
Two Officers of the Company shall sign the Notes for the Company, and two
Officers of each Subsidiary Guarantor shall sign the notation on the Notes
relating to the Guarantee of such Subsidiary Guarantor on behalf of such
Subsidiary Guarantor, in each case by manual or facsimile signature.
If an Officer of the Company or any Subsidiary Guarantor whose signature
is on a Note no longer holds that office at the time such Note is authenticated
such Note shall be valid nevertheless.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature of the Trustee shall be conclusive evidence that a
Note has been authenticated in accordance with the terms of this Indenture.
The Trustee, upon a written order of the Company signed by two Officers of
the Company, shall authenticate and deliver Notes for original issue in an
aggregate principal amount specified in such order. Such order shall specify the
amount of the Notes to be authenticated and the date on which the original issue
of Notes is to be authenticated. The aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is unlimited.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate the Notes. Unless limited by the terms of such appointment, any
such authenticating agent may authenticate the Notes whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such authenticating agent of the Trustee. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate
of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain (i) an office or agency where the Notes may be
presented for registration of transfer or for exchange (including any
co-registrar, the "Registrar"); and (ii) an office or agency where the Notes may
be presented for payment ("Paying Agent"). The Registrar shall keep a register
of the Holders of Notes and of the transfer and exchange of such Notes (the
"Note Register"). The Company may appoint one or more co-registrars and one or
more additional paying agents. The term "Paying Agent" shall include any such
additional paying agent. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder of a Note. The Company shall
notify the Trustee and the Trustee shall, at the Company's expense, notify the
Holders of the Notes of the name and address of any Agent not a party to this
Indenture. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar. The Company
shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, which shall incorporate the provisions of the TIA. Any such
agency agreement shall implement the provisions of this Indenture that relate to
such Agent. If the Company fails to maintain a Registrar or Paying Agent, or
fails to give the foregoing notice, the Trustee shall act as such, as
appropriate, and shall be entitled to appropriate compensation in accordance
with Section 7.07.
15
The Company initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
On or prior to each due date of the principal of, premium, if any, and
interest on any Note, the Company shall deposit with the Paying Agent a sum
sufficient to pay such principal, premium, if any, and interest when so becoming
due. The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders of the Notes or the Trustee all money held by the Paying Agent for
the payment of principal of, premium, if any, and interest on the Notes, and
shall notify the Trustee of any Default by the Company in making any such
payment. While any such Default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee and accounting for
any funds disbursed, the Paying Agent (if other than the Company) shall have no
further liability for the money delivered to the Trustee. If the Company acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders of the Notes all money held by it as Paying Agent.
Section 2.05. Lists of Holders of Notes.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders of Notes. If the Trustee is not the Registrar, the Company shall
furnish or cause to be furnished to the Trustee at least ten Business Days
before each interest payment date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes, including
the aggregate principal amount of Notes held by each such Holder of Notes.
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. Definitive Notes shall be
issued in registered form and shall be transferable only upon the surrender of
Definitive Notes for registration of transfer. When Definitive Notes are
presented to the Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Definitive Notes of other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met; provided, however, that any
Definitive Notes presented or surrendered for registration of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar and the Trustee duly
executed by the Holder thereof or by his attorney duly authorized in
writing; and
(ii) are being transferred pursuant to Section 2.06(b) or pursuant
to clause (A), (B) or (C) below, and are accompanied by the following
additional information and documents, as applicable:
(A) if such Definitive Notes are being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect
(in the form set forth on the reverse of the Note); or
(B) if such Definitive Notes are being transferred to the
Company a certification to that effect (in the form set forth on the
reverse of the Note); or
(C) if such Definitive Notes are being transferred pursuant
to an exemption from registration in accordance with Rule 144, Rule
144A or Regulation S under the Securities Act: (i) a certificate to
that effect (in the form of Annex A set forth on the reverse of the
Note), and (ii) if the Company or Registrar so requests, evidence
reasonably satisfactory to them as to the compliance with the
restrictions set forth in the legend set forth in Section
2.06(d)(i); or
16
(D) if such Definitive Notes are being transferred to an IAI
pursuant to an exemption from the registration requirements of the
Securities Act other than those listed in clause (C) above: (i) a
certificate to that effect (in the form of Annex B set forth on the
reverse of the Note), and (ii) if the Company or Registrar so
requests, evidence reasonably satisfactory to them as to the
compliance with the restrictions set forth in the legend set forth
in Section 2.06(d)(i).
(b) Restrictions on Transfer of a Definitive Note for a Beneficial
Interest in the Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) certification, in the form of Annex A set forth on the reverse
of the Note, that such Definitive Note is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or to a non-U.S. person
in accordance with Rule 904 under the Securities Act or certification in
the form of Annex B set forth on the reverse of the Note, that such
Definitive Note is being transferred to an IAI pursuant to an exemption
from the registration requirements of the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Notes Custodian to make, an adjustment on its books and records
with respect to such Global Note to reflect an increase in the aggregate
principal amount of the Notes represented by such Global Note,
then the Trustee shall cancel such Definitive Note and cause, or direct the
Notes Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Notes Custodian, the
aggregate principal amount of Notes represented by the Global Note to be
increased accordingly. If the Global Note is not then outstanding, the Company
shall issue and the Trustee shall authenticate, upon written order of the
Company in the form of an Officers' Certificate, a new Global Note in the
appropriate principal amount.
(c) Transfer and Exchange of Global Notes.
(i) The transfer and exchange of the Global Note or beneficial
interests therein shall be effected through the Depository, in accordance
with this Indenture (including applicable restrictions on transfer set
forth herein, if any) and the procedures of the Depository therefor, if
applicable.
(ii) Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in Section 2.09), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(iii) In the event that a Global Note is exchanged for Definitive
Notes pursuant to Section 2.09, prior to the consummation of an Exchange
Offer or the effectiveness of a Shelf Registration Statement with respect
to such Notes, such Notes may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions of this
Section 2.06 (including the certification requirements set forth on the
reverse of the Initial Notes) and such other procedures as may from time
to time be adopted by the Company.
(d) Legend.
(i) Except as permitted by the following paragraphs (ii) and
(iii), each certificate evidencing a Transfer Restricted Note (and all
Notes issued in exchange therefor or substitution thereof) shall bear a
legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES
17
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER
THAT:
(A) SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY
(i) (a) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT
(AN "INSTITUTIONAL ACCREDITED INVESTOR")) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $100,000, AN OPINION
OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, OR (e) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER
SO REQUESTS),
(ii) TO THE ISSUER, OR
(iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER FROM IT OF THIS NOTE OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
When set forth on a Global Note, the legend will include the following
additional words:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
18
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF."
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global Note)
pursuant to Rule 144 under the Securities Act or an effective registration
statement under the Securities Act, which shall be certified to the
Trustee and Registrar upon which each may conclusively rely:
(A) in the case of any Transfer Restricted Note that is a
Definitive Note, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Note for a Definitive Note that
does not bear the legend set forth above and rescind any restriction
on the transfer of such Transfer Restricted Note;
(B) in the case of any Transfer Restricted Note represented
by a Global Note, such Transfer Restricted Note shall not be
required to bear the legend set forth in (i) above if all other
interests in such Global Note have been or are concurrently being
sold or transferred pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the Securities
Act, but such Transfer Restricted Note shall continue to be subject
to the provisions of Section 2.06(c) hereof; provided, however, that
with respect to any request for an exchange of a Transfer Restricted
Note that is represented by a Global Note for a Definitive Note that
does not bear a legend set forth in (i) above, which request is made
in reliance upon Rule 144 under the Securities Act, the Holder
thereof shall certify in writing to the Notes Registrar that such
request is being made pursuant to Rule 144 under the Securities Act
(such certification to be substantially in the form of Exhibit A
hereto and upon which the Registrar may conclusively rely).
(C) Notwithstanding the foregoing, upon consummation of an
Exchange Offer, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the
Trustee shall authenticate Exchange Notes in exchange for Initial
Notes accepted for exchange in the Exchange Offer, which Exchange
Notes shall not bear the legend set forth in (i) above (other than
the Global Note legend), and the Registrar shall rescind any
restriction on the transfer of such Notes, in each case unless the
Holder of such Initial Notes is either (A) a broker-dealer, (B) a
Person participating in the distribution of the Notes or (C) a
Person who is an affiliate (as defined in Rule 144 under the
Securities Act) of the Company. The Company shall identify to the
Trustee such Holders of the Notes in a written certification signed
by an Officer of the Company and, absent certification from the
Company to such effect, the Trustee shall assume that there are no
such Holders.
(iii) After a transfer of any Initial Notes during the period of the
effectiveness of a Shelf Registration Statement with respect to such
Initial Notes, all requirements pertaining to legends on such Initial Note
will cease to apply, the requirements requiring any such Initial Note
issued to certain Holders be issued in the form of a Global Note will
cease to apply, and a Note in the form of a Definitive Note without
legends will be available to the transferee of the Holder of such Initial
Notes or upon receipt of directions to transfer such Holder's interest in
a Global Note, as applicable.
(iv) Upon the consummation of an Exchange Offer with respect to
Initial Notes pursuant to which Holders of such Initial Notes are offered
Exchange Notes in exchange for their Initial Notes, (A) all requirements
pertaining to such Initial Notes that Initial Notes issued to certain
Holders be issued in the form of a Global Note will cease to apply, (B)
Initial Notes in the form of Definitive Notes with the restricted
securities legend set forth in Exhibit A hereto will be available to
Holders of such Initial Notes that do not exchange their Initial Notes,
and (C) Exchange Notes in the form of Definitive Notes without the
restricted securities legend set forth in Exhibit A hereto will be
available to Holders that exchange such Initial Notes in such Exchange
Offer.
19
(e) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in the Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or canceled, such Global Note shall be
returned to the Depository for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in
the Global Note is exchanged for Definitive Notes, redeemed, repurchased or
canceled, the principal amount of Notes represented by such Global Note shall be
reduced and an adjustment shall be made by the Trustee or the Notes Custodian to
reflect such reduction on the books and records of the Notes Custodian for such
Global Note with respect to such Global Note.
(f) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registration of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate certificated Notes,
Definitive Notes and Global Notes at the Registrar's or co-registrar's
request.
(ii) The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section 2.06.
(iii) The Company shall not be required to make and the Registrar or
co-registrar need not register transfers or exchanges of Definitive Notes
selected for redemption (except, in the case of any Definitive Note to be
redeemed in part, the portion thereof not to be redeemed), or any Notes
for a period of 15 days before the mailing of a notice of redemption of
Notes to be redeemed or 15 days before an interest payment date.
(iv) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Note is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Note and for all other
purposes whatsoever, whether or not such Note is overdue, and none of the
Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
shall be affected by notice to the contrary.
(v) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled
to the same benefits under this Indenture as the Notes surrendered upon
such transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner in a Global Note, a member of, or a participant in the
Depository or other Person with respect to the accuracy of the records of
the Depository or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than the Depository) of any notice (including any notice of
redemption) or the payment of any amount, under or with respect to such
Notes. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Notes shall be given or made only
to or upon the order of the registered Holders (which shall be the
Depository or its nominee in the case of the Global Note). The rights of
beneficial owners in the Global Note shall be exercised only through the
Depository subject to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depository with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among Depository participants, members or beneficial owners in the Global
Note) other than to make any required delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so
if and when
20
expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee shall authenticate a
replacement Note if the Company's and the Trustee's reasonable requirements for
the replacements of Notes are met. An indemnity bond shall be supplied by the
Holder that is sufficient in the judgment of the Trustee, the Company and the
Subsidiary Guarantors to protect the Company, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a Note is
replaced. The Company may charge for its expenses (including fees and expenses
of the Trustee) in replacing a Note.
Every replacement Note shall be an obligation of the Company.
Section 2.08. Outstanding Notes; Treasury Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee, except for those canceled by it, those delivered to it for cancellation
and those described in this Section 2.08 as not outstanding. A Note does not
cease to be outstanding because the Company, a Subsidiary Guarantor or any of
their respective Subsidiaries or Affiliates of the Company holds such Note.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, any Subsidiary Guarantor or an Affiliate of the Company shall be
considered as though they are not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which a Trust Officer of the Trustee
actually knows are so owned shall be so disregarded.
If a Note is replaced pursuant to Section 2.07, it shall cease to be
outstanding unless the Trustee receives proof satisfactory to it that such
replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant to
Section 2.07.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, and the Paying
Agent is not prohibited from paying such money to the Holders of Notes on that
date pursuant to the terms of this Indenture, then on and after that date such
Notes (or portions thereof) shall cease to be outstanding and interest thereon
shall cease to accrue.
Section 2.09. Temporary Notes and Definitive Notes.
(a) Until certificates in definitive form for the Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate
certificates in temporary form for the Notes. Certificates in temporary form for
the Notes shall be substantially in the form of certificates in definitive form
for the Notes but may have such variations as the Company and the Trustee
consider appropriate for certificates in temporary form for the Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
certificates in definitive form for the Notes in exchange for certificates in
temporary form for the Notes. Until such exchange, certificates in temporary
form for the Notes shall be entitled to the same rights, benefits and privileges
as certificates in definitive form for the Notes.
(b) A Global Note deposited with the Depository or with the Trustee as
custodian for the Depository pursuant to Section 2.01 shall be transferred to
the beneficial owners thereof in the form of Definitive Notes in an aggregate
principal amount equal to the principal amount of such Global Note, in exchange
for such Global Note, only if such transfer complies with Section 2.06 and (i)
the Depository notifies the Company that it is unwilling or unable to continue
as Depository for such Global Note or if at any time such Depository ceases to
be a "clearing
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agency" registered under the Exchange Act and a successor depository is not
appointed by the Company within 90 days of such notice, (ii) an Event of Default
has occurred and is continuing or (iii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
Definitive Notes under this Indenture.
(c) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section shall be surrendered by the Depository to the
Trustee to be so transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Note, an equal aggregate principal amount of
Definitive Notes of authorized denominations. Any portion of a Global Note
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depository shall direct. Any Definitive Note
delivered in exchange for an interest in a Global Note shall, except as
otherwise provided by Section 2.06(d), bear the restricted securities legend set
forth in Exhibit A hereto.
(d) Subject to the provisions of Section 2.09(c), the registered Holder
of a Global Note may grant proxies and otherwise authorize any person, including
agent members, participants and persons that may hold interests through agent
members, to take any action which a Holder is entitled to take under this
Indenture or the Notes.
(e) In the event of the occurrence of any of the events specified in
Section 2.09(b), the Company will promptly make available to the Trustee a
reasonable supply of Definitive Notes in definitive, fully registered form
without interest coupons.
Section 2.10. Cancellation.
The Company or any Subsidiary Guarantor at any time may deliver Notes to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation, and shall dispose of such canceled Notes in its customary manner.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, the Company
shall pay such defaulted interest in any lawful manner. The Company may pay such
defaulted interest to the Persons who are Holders of the Notes on a subsequent
special record date, which date shall be at the earliest practicable date but in
all events at least five Business Days prior to the payment date, in each case
at the rate provided in the Notes. The Company shall fix or cause to be fixed
any such special record date and payment date, and, at least 15 days prior to
the special record date, the Company shall mail or cause to be mailed to each
Holder of a Note a notice that states such special record date, such related
payment date and the amount of any such defaulted interest to be paid to Holders
of the Notes.
Section 2.12. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and, if the
Company shall do so, the Trustee shall use such CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in such notice or on the Notes and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company will promptly notify the Trustee of any change in a CUSIP
number.
Section 2.13. Persons Deemed Owners.
The Company, any Subsidiary Guarantor, the Trustee, any Paying Agent and
any authenticating agent may treat the Person in whose name any Note is
registered as the owner of such Note for the purpose of receiving payments of
principal of, premium, if any, or interest on such Note and for all other
purposes. None of the
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Company, any Subsidiary Guarantor, the Trustee, any Paying Agent or any
authenticating agent shall be affected by any notice to the contrary.
Section 2.14. Issuance of Additional Notes.
The Company may, subject to Article Four of this Indenture and applicable
law, issue additional Notes under this Indenture. The Notes issued on the Issue
Date and any additional Notes subsequently issued shall be treated as a single
class for all purposes under this Indenture.
ARTICLE THREE
REDEMPTION
Section 3.01. Notice to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of paragraph 6 of the Notes, it shall furnish to the Trustee, at
least 45 days but not more than 60 days before the redemption date, an Officers'
Certificate setting forth the redemption date, the principal amount of Notes to
be redeemed and the redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed, the Trustee shall select
the Notes to be redeemed in multiples of $1,000 pro rata, by lot or by any other
method that the Trustee considers fair and appropriate; provided that if the
Notes are listed on any securities exchange, that such method complies with the
requirements of such exchange. The Trustee shall make the selection from
outstanding Notes not previously called for redemption not less than 30 nor more
than 60 days prior to the redemption date. The Trustee may select for redemption
portions of the principal of Notes that have denominations larger than $1,000.
Notes and portions of them it selects shall be in amounts of $1,000 or whole
multiples of $1,000. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The Trustee
shall notify the Company promptly of the Notes or portions of Notes selected for
redemption.
Section 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption by first-class mail to each Holder
of Notes to be redeemed at such Holder's registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the aggregate principal amount of Notes being redeemed;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect the
redemption price;
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(6) that, unless the Company defaults in the payment of the
redemption price or accrued interest, interest on Notes called for
redemption ceases to accrue on and after the redemption and the only
remaining right of the Holders is to receive payment of the redemption
prices upon surrender to the Paying Agent of the Notes;
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(8) the paragraph of the Notes pursuant to which the Notes called
for redemption are being redeemed; and
(9) the CUSIP number of the Notes.
(b) At the Company's request, the Trustee shall give the notice of
redemption required in Section 3.03(a) in the Company's name and at the
Company's expense; provided, however, that the Company shall deliver to the
Trustee, at least 45 days prior to the redemption date, an Officers' Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in Section 3.03(a).
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03, Notes
called for redemption become due and payable on the redemption date at the
redemption price. Upon surrender to the Paying Agent, such Notes shall be paid
at the redemption price, plus accrued interest to the redemption date.
Section 3.05. Deposit of Redemption Price.
Prior to the redemption date, the Company shall deposit with the Paying
Agent funds available on the redemption date sufficient to pay the redemption
price of, and accrued interest on, the Notes to be redeemed on that date. The
Paying Agent shall promptly return to the Company any money so deposited which
is not required for that purpose upon the written request of the Company, except
with respect to monies owed as obligations to the Trustee pursuant to Article
Seven.
If any Note called for redemption shall not be so paid upon redemption
because of the failure of the Company to comply with the preceding paragraph,
interest will continue to be payable on the unpaid principal and premium, if
any, including from the redemption date until such principal and premium, if
any, is paid, and, to the extent lawful, on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder, at the expense of the
Company, a new Note equal in aggregate amount to the unredeemed portion of the
Note surrendered.
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ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of, premium, if any, and interest on,
the Notes on the dates and in the manner provided in the Notes and this
Indenture. Principal, premium, if any, and interest shall be considered paid on
the date due if the Trustee or Paying Agent holds on that date money deposited
by the Company designated for and sufficient to pay all principal, premium, if
any, and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal, and premium, if any,
at the rate borne by the Notes to the extent lawful; and it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace period)
at the same rate to the extent lawful.
Section 4.02. Commission Reports.
(a) The Company shall file with the Trustee, within 15 days after it
files the same with the Commission, copies of the annual reports and the
information, documents and other reports (or copies of any such portions of any
of the foregoing as the Commission may by rules and regulations prescribe) that
the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act. If the Company is not subject to the requirements of
such Section 13 or 15(d), the Company shall file with the Trustee, within 15
days after it would have been required to file the same with the Commission,
financial statements, including any notes thereto (and with respect to annual
reports, an auditors' report by a firm of established national reputation), and
a "Management's Discussion and Analysis of Financial Condition and Results of
Operations," both comparable to that which the Company would have been required
to include in such annual reports, information, documents or other reports if
the Company had been subject to the requirements of such Section 13 or 15(d).
The Company and each Subsidiary Guarantor shall also comply with the provisions
of TIA Section 314(a).
(b) If the Company is required to furnish annual or quarterly reports to
its stockholders pursuant to the Exchange Act, the Company shall cause any
annual report furnished to its stockholders generally and any quarterly or other
financial reports furnished by it to its stockholders generally to be filed with
the Trustee and mailed to the Holders at their addresses appearing in the
register of Notes maintained by the Registrar. If the Company is not required to
furnish annual or quarterly reports to its stockholders pursuant to the Exchange
Act, the Company shall cause its financial statements referred to in Section
4.03(b), including any notes thereto (and with respect to annual reports, an
auditors' report by a firm of established national reputation), to be so mailed
to the Holders within 90 days after the end of each of the Company's fiscal
years and within 60 days after the end of each of the Company's first three
fiscal quarters.
(c) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Trustee may
be required to deliver to Holders under this Section. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 4.03. Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and the Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that, to the best of
such Officer's knowledge, the Company
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and each Subsidiary Guarantor has kept, observed, performed and fulfilled each
and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which such Officer may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of such Officer's knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium,
if any, or interest, if any, on the Notes are prohibited or, if such event has
occurred, a description of the event and what action the Company and the
Subsidiary Guarantors are taking or propose to take with respect thereto. Such
Officers' Certificate shall comply with TIA Section 314(a)(4).
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.02 shall be accompanied by a written
statement of the Company's independent public accountants (which shall be a firm
of established national reputation) that in making the examination necessary for
certification of such financial statements nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Articles 4 or 5 of this Indenture (to the extent such provisions relate to
accounting matters) or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company and the Subsidiary Guarantors will, so long as any of
the Notes are outstanding, deliver to the Trustee as soon as possible and in any
event within five days after any Officer becomes aware of any Default or Event
of Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Company or any Subsidiary Guarantor proposes to take with
respect thereto.
Section 4.04. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Notes may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company initially designates The Bank of New York, 000 Xxxxxxx
Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000 to be its agent for purposes of the
preceding sentence. The Company will give prompt written notice to the Trustee
of any change in the location of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.02.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 4.05. Corporate Existence.
Subject to the provisions of the Indenture on mergers, consolidations,
reorganizations, sales of capital stock of Restricted Subsidiaries and releases,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the corporate,
partnership or other existence of each Restricted Subsidiary and all rights
(charter and statutory) and franchises of the Company and the Restricted
Subsidiaries; provided that the Company shall not be required to preserve the
corporate existence of any Restricted Subsidiary, or any such right or
franchise, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
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Section 4.06. Waiver of Stay, Extension or Usury Laws.
The Company and each Subsidiary Guarantor covenants (to the extent that
each may lawfully do so) that it will not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension, or usury law or other law, which would prohibit or forgive the
Company or any Subsidiary Guarantor from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that each may
lawfully do so) the Company and each Subsidiary Guarantor hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 4.07. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a Lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 4.08. Maintenance of Properties and Insurance; Line of Business.
(a) The Company shall cause all properties used or necessary in the
conduct of its business or the business of any Restricted Subsidiary to be
maintained and kept in good condition, repair and working order (ordinary wear
and tear excepted) and supplied with all necessary equipment and shall cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any such property, or disposing of it, if such discontinuance or
disposal is, in the judgment of the Company, desirable in the conduct of its
business and not disadvantageous in any material respect to the Holders.
(b) The Company shall provide, or cause to be provided, for itself and
each of its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company are adequate and appropriate for the conduct
of the business of the Company and such Restricted Subsidiaries in a prudent
manner, with reputable insurers or with the government of the United States or
an agency or instrumentality thereof, in such amounts, with such deductibles,
and by such methods as shall be customary, in the reasonable, good faith opinion
of the Company, for corporations similarly situated in the industry.
(c) For as long as any Notes are outstanding, the Company shall not, and
shall not permit any of its Restricted Subsidiaries to, engage in any business
or activity other than a Principal Business.
Section 4.09. Limitation on Incurrence of Additional Indebtedness.
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries, directly or indirectly, to issue, incur, assume, guarantee, become
liable, contingently or otherwise, with respect to or otherwise become
responsible for the payment of (collectively, "incur") any Indebtedness;
provided, however, that if no Default or Event of Default with respect to the
Notes shall have occurred and be continuing at the time or as a consequence of
the incurrence of such Indebtedness, the Company or the Restricted Subsidiaries
may incur Indebtedness if, on a pro forma basis, after giving effect to such
incurrence and the application of the proceeds therefrom, the Consolidated
Coverage Ratio would have been equal to or greater than 2.0 to 1.0.
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(b) Notwithstanding the foregoing, (i) the Company may incur
Indebtedness consisting of the Notes; (ii) the Subsidiary Guarantors may incur
the Guarantees; (iii) the Company and the Subsidiary Guarantors may incur
Indebtedness in existence on the date of this Indenture; (iv) the Company or any
Subsidiary may incur secured or unsecured Indebtedness outstanding at any time
in an aggregate principal amount not to exceed the greater of (A) $100 million
or (B) the Borrowing Base; (v) the Company may incur Permitted Company
Refinancing Indebtedness; (vi) any Restricted Subsidiary may incur Permitted
Subsidiary Refinancing Indebtedness; and (vii) the Company may incur
Indebtedness to any Restricted Subsidiary, and any Restricted Subsidiary may
incur Indebtedness to the Company or to any Restricted Subsidiary; provided that
(a) any subsequent issuance or transfer that results in any such Indebtedness
being held by a Person other than the Company or a Restricted Subsidiary or (b)
any sale or other transfer of any such Indebtedness to a Person that is not
either the Company or a Restricted Subsidiary, shall be deemed, in each case to
constitute an incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause (vii).
(c) Any Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition
or otherwise) shall be deemed to be incurred by such Restricted Subsidiary at
the time it becomes a Restricted Subsidiary.
For purposes of determining compliance with this Section 4.09, in the
event that any proposed Indebtedness meets the criteria of more than one of the
categories of debt described in paragraph (b) above or is entitled to be
incurred pursuant to paragraph (a) above, the Company will be permitted to
classify such item of Indebtedness on the date of its incurrence in any manner
that complies with this covenant, including applying such Indebtedness to any
one or more categories.
Section 4.10. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(ii) at the time of and immediately after giving effect to such
Restricted Payment, the Company would be able to incur at least $1.00 of
additional Indebtedness pursuant to Section 4.09(a); and
(iii) immediately after giving effect to such Restricted Payment,
the aggregate of all Restricted Payments declared or made after August 26,
1997 does not exceed the sum of (A) 50% of the Consolidated Net Income of
the Company and its Restricted Subsidiaries (or in the event such
Consolidated Net Income shall be a deficit, minus 100% of such deficit)
during the period (treated as one accounting period) subsequent to
September 30, 1997 and ending on the last day of the fiscal quarter
immediately preceding the date of such Restricted Payment; (B) the
aggregate Net Cash Proceeds, and the fair market value of property other
than cash (as determined in good faith by the Company's Board of Directors
and evidenced by a Board Resolution, except in the case of a Restricted
Payment or series of related Restricted Payments to a present or Former
Affiliate of the Company having a fair market value in excess of $2
million, in which case, as determined by an independent accounting,
appraisal or investment banking firm of national reputation), received by
the Company during such period from any Person other than a Restricted
Subsidiary of the Company as a result of the issuance or sale of Capital
Stock of the Company (other than any Disqualified Stock), other than in
connection with the conversion of Indebtedness or Disqualified Stock; (C)
the aggregate Net Cash Proceeds, and the fair market value of property
other than cash (as determined in good faith by the Company's Board of
Directors and evidenced by a Board Resolution, except in the case of a
Restricted Payment or series of related Restricted Payments to a present
or Former Affiliate of the Company having a fair market value in excess of
$2 million, in which case, as determined by an independent accounting,
appraisal or investment banking firm of national reputation), received by
the Company during such period from any Person other than a Restricted
Subsidiary of the Company as a result of the issuance or sale of any
Indebtedness or Disqualified Stock to the extent that at the time the
28
determination is made such Indebtedness or Disqualified Stock, as the case
may be, has been converted into or exchanged for Capital Stock of the
Company (other than Disqualified Stock); (D)(1) in case any Unrestricted
Subsidiary has been redesignated a Restricted Subsidiary, an amount equal
to the lesser of (x) the book value (determined in accordance with GAAP)
at the date of such redesignation of the aggregate Investments made by the
Company and its Restricted Subsidiaries in such Unrestricted Subsidiary
and (y) the fair market value of such Investments in such Unrestricted
Subsidiary at the time of such redesignation, as determined in good faith
by the Board of Directors of the Company, whose determination shall be
conclusive and evidenced by a Board Resolution; or (2) in case any
Restricted Subsidiary has been redesignated an Unrestricted Subsidiary,
minus the greater of (x) the book value (determined in accordance with
GAAP) at the date of redesignation of the aggregate Investments made by
the Company and its Restricted Subsidiaries in such Restricted Subsidiary
and (y) the fair market value of such Investments in such Restricted
Subsidiary at the time of such redesignation, as determined in good faith
by the Board of Directors, whose determination shall be conclusive and
evidenced by a Board Resolution; (E) without duplication, with respect to
any Investment (other than a Permitted Investment) of any Person which has
previously been made by the Company or any of its Restricted Subsidiaries,
the amount of any such Investment that has been fully and unconditionally
repaid to the Company or a Restricted Subsidiary, not to exceed the cash
amount received by the Company or such Restricted Subsidiary upon such
repayment or with respect to any Indebtedness of any Person that has
previously been guaranteed by the Company or any of its Restricted
Subsidiaries (other than the Notes or Subsidiary Guarantees), the amount
of any such Indebtedness that has been fully and unconditionally repaid or
for which the guarantees of the Company and each of its Restricted
Subsidiaries which are guarantors thereof have been fully and
unconditionally released from any and all further obligation or liability
with respect thereto, provided in each case that such amount shall not
exceed the aggregate amount of Restricted Payments previously taken into
account with respect to such amount for purposes of determining the
aggregate amount of all Restricted Payments declared or made after the
Issue Date pursuant to this clause (iii); and (F) $30 million.
(b) Notwithstanding the foregoing, the above limitations will not
prevent (i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment complied with
the provisions hereof, (ii) the purchase, redemption, acquisition or retirement
of any shares of Capital Stock of the Company in exchange for, or out of the net
proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of, other shares of Capital Stock (other than
Disqualified Stock) of the Company; or (iii) the defeasance, redemption or
retirement of Indebtedness of the Company which is pari passu or subordinate in
right of payment to the Notes, in exchange for, by conversion into, or out of
the net proceeds of the substantially concurrent issue or sale (other than to a
Restricted Subsidiary of the Company) of Capital Stock (other than Disqualified
Stock) of the Company; provided that, other than with respect to clause (i)
above, no Default or Event of Default has occurred and is continuing at the
time, or shall occur as a result thereof.
Section 4.11. Limitation on Sale of Assets.
(a) The Company will not, and will not permit any Restricted Subsidiary
to, make any Asset Sales that, in the aggregate, have a fair market value of $10
million or more in any 12-month period unless:
(i) the Company (or its Restricted Subsidiaries, as the case may
be) receives consideration at the time of such sale or other disposition
at least equal to the fair market value thereof (as determined in good
faith by the Company's Board of Directors and evidenced by a Board
Resolution in the case of any Asset Sales or series of related Asset Sales
having a fair market value of $15 million or more, except in the case of a
transaction or series of related transactions with a present or Former
Affiliate of the Company having a fair market value in excess of $2
million, in which case, as determined by an independent accounting,
appraisal or investment banking firm of national reputation);
(ii) not less than 85% of the proceeds received by the Company (or
its Restricted Subsidiaries, as the case may be) from each such Asset Sale
consists of (A) cash, (B) cash equivalents which would constitute
Permitted Financial Investments, (C) Publicly Traded Stock of a Person
primarily engaged in a Principal Business, (D) other consideration with an
aggregate fair market value, together with all other consideration of the
type specified in this clause (D) received by the Company and its
Restricted
29
Subsidiaries from all Asset Sales after the Issue Date, not to exceed $5
million; provided that any sale of such other consideration shall be for
cash and shall be considered an Asset Sale under this Indenture and no
such consideration shall be received in a transaction with a present or
Former Affiliate of the Company, or (E) any combination of the foregoing;
provided, however, that (1) the amount of (x) any liabilities (as shown on
the Company's or such Restricted Subsidiary's most recent balance sheet or
in the notes thereto) of the Company or such Restricted Subsidiary (other
than liabilities that are by their terms expressly subordinated to the
Notes or any guarantee thereof) that are assumed by the transferee of any
such assets and (y) any notes or other obligations received by the Company
or any such Restricted Subsidiary from such transferee that, within 90
days following the closing of such sale or disposition, are converted by
the Company or such Restricted Subsidiary into cash (to the extent of the
cash received), shall be deemed to be cash for purposes of this provision
and (2) the aggregate fair market value (as determined in good faith by
the Board of Directors of the Company, evidenced by a Board Resolution) of
all consideration of the type specified in clause (C) above received by
the Company and its Restricted Subsidiaries from all Asset Sales after the
Issue Date shall not exceed 15% of Consolidated Net Tangible Assets at the
time of such Asset Sale; and
(iii) the Net Available Proceeds received by the Company (or its
Restricted Subsidiaries, as the case may be) from such Asset Sales are
applied in accordance with paragraph (b) or (c) hereof.
Notwithstanding the foregoing, the Company and its Restricted Subsidiaries
may dispose of property and assets of the Company or its Restricted Subsidiaries
in exchange for capital property and capital assets (i) which are directly
related to a Principal Business; (ii) which are of the same type of property or
assets, or which have the same function, as the properties or assets being
disposed of; and (iii) which have an aggregate fair market value equal to or
greater than the aggregate fair market value of the property and assets being
disposed of; provided, however, that (A) in no event may the Company and its
Restricted Subsidiaries, in any 12-month period, dispose of property or assets
pursuant to this paragraph having an aggregate fair market value of $10 million
or more and (B) with respect to any property or assets being disposed of having
a fair market value of $1 million or more, the Board of Directors of the Company
shall have determined in good faith and evidenced by a Board Resolution, that
the aggregate fair market value of the property and assets being received by the
Company and its Restricted Subsidiaries is equal to or greater than the
aggregate fair market value of the property and assets being disposed of.
(b) The Company may, within 360 days following the receipt of Net
Available Proceeds from any Asset Sale, apply such Net Available Proceeds to:
(i) the repayment of Indebtedness of the Company under a Bank Credit Facility or
other Senior Indebtedness of the Company or Senior Indebtedness of a Subsidiary
Guarantor, provided that any such repayment shall result in a permanent
reduction in the principal amount of such Senior Indebtedness in an amount equal
to the principal amount so repaid; or (ii) make an investment in capital assets
used in a Principal Business.
(c) If, upon completion of the 360-day period (the "Trigger Date"), any
portion of the Net Available Proceeds of any Asset Sale shall not have been
applied by the Company as described in clauses 4.11(b)(i) or (ii) and such
remaining Net Available Proceeds, together with any remaining net cash proceeds
from any prior Asset Sale (such aggregate constituting "Excess Proceeds"),
exceeds $10 million, then the Company will be obligated to make an offer (a "Net
Proceeds Offer") to purchase, from all Holders of the Notes and holders of any
then outstanding Pari Passu Indebtedness required to be repurchased or repaid on
a permanent basis in connection with an Asset Sale, an aggregate principal
amount of Notes and any then outstanding Pari Passu Indebtedness equal to such
Excess Proceeds as follows:
(1) not later than the 30th day following the Trigger Date, the
Company shall (i) give to the Trustee and each Holder of the Notes in the
manner provided in Section 13.02 hereof, a notice (a "Purchase Notice")
offering to purchase from all Holders of the Notes the maximum principal
amount (expressed as a multiple of $1,000) of Notes that may be purchased
out of an amount (the "Net Proceeds Offer Amount") equal to the product of
such Excess Proceeds multiplied by a fraction, the numerator of which is
the outstanding principal amount of the Notes and the denominator of which
is the sum of the outstanding principal amount of the Notes and any then
outstanding Pari Passu Indebtedness (subject to proration in the event
such amount is less than the aggregate Offered Price (as hereinafter
defined) of all Notes tendered),
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and (ii) to the extent required by any then outstanding Pari Passu
Indebtedness and provided there is a permanent reduction in the principal
amount of such Pari Passu Indebtedness, the Company shall make an offer to
purchase such Pari Passu Indebtedness (the "Pari Passu Offer") in an
amount (the "Pari Passu Indebtedness Amount") equal to the excess of the
Excess Proceeds over the Net Proceeds Offer Amount.
(2) the offer price for the Notes shall be payable in cash in an
amount equal to 100% of the principal amount of the Notes tendered
pursuant to a Net Proceeds Offer, plus accrued and unpaid interest, if
any, to the date such Net Proceeds Offer is consummated (the "Offered
Price"), in accordance with paragraphs (d) and (e) of this Section. To the
extent that the aggregate Offered Price of the Notes tendered pursuant to
a Net Proceeds Offer is less than the Net Proceeds Offer Amount relating
thereto or the aggregate amount of the Pari Passu Indebtedness that is
purchased or repaid pursuant to the Pari Passu Offer is less than the Pari
Passu Indebtedness Amount (such shortfall constituting a "Net Proceeds
Deficiency"), the Company may use such Net Proceeds Deficiency, or a
portion thereof, for general corporate purposes, subject to the
limitations of Section 4.10 hereof.
(3) if the aggregate Offered Price of Notes validly tendered and
not withdrawn by Holders thereof exceeds the Net Proceeds Offer Amount,
Notes to be purchased will be selected on a pro rata basis by the Trustee
based on the principal amount of Notes so tendered. Upon completion of a
Net Proceeds Offer and a Pari Passu Offer, the amount of Excess Proceeds
shall be reset to zero.
The Purchase Notice shall set forth a purchase date (the "Net Proceeds
Payment Date"), which shall be on a Business Day no earlier than 30 days nor
later than 70 days from the Trigger Date. The Purchase Notice shall also state
(i) that a Trigger Date with respect to one or more Asset Sales has occurred and
that such Holder has the right to require the Company to repurchase such
Holder's Notes at the Offered Price, subject to the limitations described in the
foregoing paragraph (3), (ii) any information regarding such Net Proceeds Offer
required to be furnished pursuant to Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder, (iii) that any Note, or
portion thereof, not tendered or accepted for payment will continue to accrue
interest, (iv) that, unless the Company defaults in depositing money with the
Paying Agent in accordance with paragraph (e) of this Section 4.11, or payment
is otherwise prevented, any Note, or portion thereof, accepted for payment
pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net
Proceeds Payment Date, and (v) the instructions a Holder must follow in order to
have its Notes repurchased in accordance with paragraph (d) of this Section.
(d) Notice of a Net Proceeds Offer to purchase the Notes will be made on
behalf of the Company not less than 25 business days nor more than 60 business
days before the Net Proceeds Payment Date. Notes tendered to the Company
pursuant to a Net Proceeds Offer will cease to accrue interest after the Net
Proceeds Payment Date. If the Net Proceeds Payment Date is on or after an
interest payment record date and on or before the related interest payment date,
any accrued interest will be paid to the person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes pursuant to the Net
Proceeds Offer.
(e) On the Net Proceeds Payment Date, the Company will (i) accept for
payment Notes or portions thereof pursuant to the Net Proceeds Offer in an
aggregate principal amount equal to the Net Proceeds Offer Amount or such lesser
amount of Notes as has been tendered, (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so
tendered in an aggregate principal amount equal to the lesser of (A) the Net
Proceeds Offer Amount or (B) the aggregate principal amount of all Notes or
portions thereof so tendered, and (iii) deliver, or cause to be delivered to the
Trustee, Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof tendered to the Company.
If the aggregate principal amount of Notes tendered exceeds the Net Proceeds
Offer Amount, the Trustee will select the Notes to be purchased (in integral
multiples of $1,000) pro rata or by lot based on the principal amount of Notes
so tendered. The Paying Agent will promptly mail or deliver to Holders so
accepted payment in an amount equal to the purchase price, and the Company will
execute and the Trustee will promptly authenticate and mail or make available
for delivery to such Holders a new Note equal in principal amount to any
unpurchased portion of the Note surrendered. Any Notes not so accepted will be
promptly mailed or delivered to the Holder thereof. The Company will publicly
announce the results of the Net Proceeds Offer on or as soon as practicable
after the Net Proceeds Payment Date. For purposes of this Section 4.11, the
Trustee will act as the Paying Agent.
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(f) During the period between any Asset Sale and the application of the
Net Available Proceeds therefrom in accordance with this Section 4.11, all Net
Available Proceeds shall be invested in Permitted Financial Investments or may
be used to repay Indebtedness under a Bank Credit Facility.
(g) The Company, to the extent applicable and if required by law, will
comply with Section 14 of the Exchange Act and the provisions of Regulation 14E
and any other tender offer rules under the Exchange Act and any other federal
and state securities laws, rules and regulations which may then be applicable to
any offer by the Company to purchase the Notes at the option of the Holders
pursuant to a Net Proceeds Offer.
Section 4.12. Limitation on Liens Securing Indebtedness.
The Company will not, and will not permit any of Restricted Subsidiaries
to, create, incur, assume or suffer to exist any Liens (other than Permitted
Liens) upon any of their respective properties securing (i) any Indebtedness of
the Company (other than Senior Indebtedness of the Company), unless the Notes
are equally and ratably secured or (ii) any Indebtedness of any Subsidiary
Guarantor (other than Senior Indebtedness of such Subsidiary Guarantor), unless
the Guarantees of such Subsidiary Guarantors are equally and ratably secured;
provided, however, that if such Indebtedness is expressly subordinated to the
Notes or the Guarantees, the Lien securing such Indebtedness will be
subordinated and junior to the Lien securing the Notes or the Guarantees, with
the same relative priority as such subordinated Indebtedness of the Company or a
Subsidiary Guarantor will have with respect to the Notes or the Guarantees, as
the case may be.
Section 4.13. Limitation on Payment Restrictions Affecting Restricted
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary of the Company to (i) pay dividends
or make any other distributions on its Capital Stock, or any other interest or
participation in a Restricted Subsidiary; (ii) pay any Indebtedness owed to the
Company or a Restricted Subsidiary of the Company; (iii) make loans or advances
to the Company or a Restricted Subsidiary of the Company; or (iv) transfer any
of its properties or assets to the Company or a Restricted Subsidiary of the
Company (each, a "Payment Restriction"), except for (A) encumbrances or
restrictions with respect to Senior Indebtedness in effect on the Issue Date;
(B) encumbrances under a Bank Credit Facility; (C) consensual encumbrances or
consensual restrictions binding upon any Person at the time such Person becomes
a Restricted Subsidiary of the Company (unless the agreement creating such
consensual encumbrance or consensual restrictions was entered into in connection
with, or in contemplation of, such entity becoming a Subsidiary); (D) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of any Restricted Subsidiary; (E) customary restrictions in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the property
subject to such security agreements and mortgages; (F) customary restrictions in
purchase money obligations for property acquired in the ordinary course of
business restricting the transfer of the property acquired thereby; (G)
consensual encumbrances or consensual restrictions under any agreement that
refinances or replaces any agreement described in clauses (A), (B), (C), (D),
(E) or (F) above, provided that the terms and conditions of any such
restrictions are no less favorable to the Holders of the Notes than those under
the agreement so refinanced or replaced; and (H) any encumbrance or restriction
due to applicable law.
Section 4.14. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) sell, lease, transfer or otherwise
dispose of any of its properties, assets or securities to, (ii) purchase or
lease any property, assets or securities from, (iii) make any Investment in, or
(iv) enter into or amend any contract or agreement with or for the benefit of,
either (A) a present or Former Affiliate of any of them, (B) any Person or
Person who is a member of a group (as such term is used for purposes of Sections
13(d) and 14(d) of the Exchange Act, whether or not applicable) that, directly
or indirectly, is the beneficial holder of 5% or more of any class of equity
securities of the Company, (C) any Person who is an Affiliate of any such
holder, or (D) any officers, directors, or employees of any of the above (each
case under (A), (B), (C) and (D), an "Affiliate Transaction"), in
32
one or a series of related transactions (to either party), except for
transactions evidenced by an Officers' Certificate addressed and delivered to
the Trustee stating that such Affiliate Transaction is made in good faith, the
terms of which are fair and reasonable to the Company and such Restricted
Subsidiary, as the case may be, or, with respect to Affiliate Transactions
between the Company and any of its Subsidiaries, to the Company; provided that
(v) an Officer's Certificate shall not be required for Affiliate Transactions
that, in the aggregate, do not exceed $100,000 in any 12-month period, (w)
transactions between or among the Company and any of its Restricted Subsidiaries
shall not be deemed to constitute Affiliate Transactions, (x) any reasonable
employment, compensation, benefit or indemnification agreement entered into by
the Company or any of its Restricted Subsidiaries in the ordinary course of
business shall not be deemed to constitute Affiliate Transactions, and (y) with
respect to any Affiliate Transaction or series of related transactions with an
aggregate value (to either party) in excess of $2 million (excluding issuances
of Qualified Stock of the Company and any forgiveness of Indebtedness to present
or Former Affiliates existing on the Issue Date), the Company must, prior to the
consummation thereof, obtain a written favorable opinion as to the fairness of
such transaction to itself from a financial point of view from an independent
accounting, appraisal or investment banking firm of national reputation.
Section 4.15. Limitation on Future Senior Subordinated Indebtedness.
The Company shall not incur any Indebtedness other than the Notes that is
subordinated in right of payment to any other Indebtedness of the Company unless
such Indebtedness by its terms, is pari passu with or subordinated to the Notes.
No Subsidiary Guarantor shall incur any Indebtedness other than the Guarantee of
such Subsidiary Guarantor that is subordinated in right of payment to any other
Indebtedness of such Subsidiary Guarantor unless such Indebtedness, by its
terms, is pari passu with or subordinated to the Guarantee of such Subsidiary
Guarantor.
Section 4.16. Change of Control.
(a) Within 30 days following the occurrence of any Change of Control,
the Company shall offer (a "Change of Control Offer") to purchase all
outstanding Notes at a purchase price equal to 101% of the aggregate principal
amount of the Notes, plus accrued and unpaid interest to the date of purchase.
The Change of Control Offer shall be deemed to have commenced upon mailing of
the notice described in Section 4.16(b) and shall terminate 20 Business Days
after its commencement, unless a longer offering period is then required by law.
Promptly after the termination of the Change of Control Offer (the "Change of
Control Payment Date"), the Company shall purchase and mail or deliver payment
for all Notes tendered in response to the Change of Control Offer. If the Change
of Control Payment Date is on or after an interest payment record date and on or
before the related interest payment date, any accrued interest will be paid to
the Person in whose name a Note is registered at the close of business on such
record date, and no additional interest will be payable to Holders who tender
Notes pursuant to the Change of Control Offer.
(b) Within 30 days after any Change of Control, the Company (with notice
to the Trustee), or the Trustee at the Company's request, will mail or cause to
be mailed to all Holders on the date of the Change of Control a notice (the
"Change of Control Notice") of the occurrence of such Change of Control and of
the Holders' rights arising as a result thereof. The Change of Control Notice
will contain all instructions and materials necessary to enable Holders to
tender their Notes to the Company. The Change of Control Notice, which shall
govern the terms of the Change of Control Offer, shall state: (1) that the
Change of Control Offer is being made pursuant to this Section 4.16; (2) the
purchase price and the Change of Control Payment Date; (3) that any Note not
tendered will continue to accrue interest; (4) that any Note accepted for
payment pursuant to the Change of Control Offer shall cease to accrue interest
on the Change of Control Payment Date; (5) that Holders electing to have a Note
purchased pursuant to any Change of Control Offer will be required to surrender
the Note, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice prior to
termination of the Change of Control Offer; (6) that Holders will be entitled to
withdraw their election if the Company, depositary or Paying Agent, as the case
may be, receives, not later than the expiration of the Change of Control Offer,
or such longer period as may be required by law, a facsimile transmission or
letter setting forth the name of the Holder, the certificate or other
identifying number, the principal amount of the Note the Holder delivered for
purchase and a statement that such
33
Holder is withdrawing his election to have the Note purchased; and (7) that
Holders whose Notes are purchased only in part will be issued Notes equal in
principal amount to the unpurchased portion of the Notes surrendered.
(c) On the Change of Control Payment Date, the Company shall (i) accept
for payment Notes or portions thereof tendered pursuant to the Change of Control
Notice, (ii) if the Company appoints a depository or Paying Agent, deposit with
such depository or Paying Agent money sufficient to pay the purchase price of
all Notes or portions thereof so tendered and (iii) deliver to the Trustee Notes
so accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof tendered to the Company. The
depository, the Company or the Paying Agent, as the case may be, shall promptly
mail to the Holder of Notes so accepted payment in an amount equal to the
purchase price, and the Trustee shall promptly authenticate and mail to such
Holders a new Note equal in principal amount to any unpurchased portion of the
Note surrendered. The Company will publicly announce the results of the Change
of Control offer on or as soon as practicable after the Change of Control
Payment Date. For purposes of this Section 4.16, the Trustee shall act as the
Paying Agent.
(d) The Company, to the extent applicable and if required by law, will
comply with Section 14 of the Exchange Act and the provisions of Regulation 14E
and any other tender offer rules under the Exchange Act and any other federal
and state securities laws, rules and regulations which may then be applicable to
any offer by the Company to purchase the Notes of the Holders upon a Change of
Control.
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, Etc.
The Company shall not consolidate with or merge with any Person or convey,
transfer or lease all or substantially all of its property to any Person,
unless:
(1) the Company survives such merger or the Person formed by such
consolidation or into which the Company is merged or that acquires by
conveyance or transfer, or which leases, all or substantially all of the
property of the Company is a corporation organized and existing under the
laws of the United States of America, any state thereof or the District of
Columbia and expressly assumes, by supplemental indenture, the due and
punctual payment of the principal of, premium, if any, and interest on,
all the Notes and the performance of every other covenant and obligation
of the Company under the Indenture;
(2) immediately before and after giving effect to such transaction
no Default or Event of Default exists;
(3) immediately after giving effect to such transaction on a pro
forma basis, the Consolidated Tangible Net Worth of the Company (or the
surviving or transferee entity) is equal to or greater than the
Consolidated Tangible Net Worth of the Company immediately before such
transaction; and
(4) immediately after giving effect to such transaction on a pro
forma basis, the Company (or the surviving or transferee entity) would be
able to incur $1.00 of additional Indebtedness under the test described in
Section 4.09(a).
In connection with any consolidation, merger, conveyance, transfer or
lease contemplated by this Section 5.01, the Company shall deliver to the
Trustee prior to the consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this Indenture.
34
Section 5.02. Successor Corporation Substituted.
Upon any consolidation, merger, lease, conveyance or transfer in
accordance with Section 5.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such lease, conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor had been named as the Company herein and thereafter (except
in the case of a lease) the predecessor corporation will be relieved of all
further obligations and covenants under this Indenture and the Notes.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs upon:
(1) default by the Company or any Subsidiary Guarantor in the
payment of principal of, or premium, if any, on the Notes when due and
payable at maturity, upon repurchase pursuant to Section 4.11 or 4.16,
upon acceleration or otherwise (whether or not such payment shall be
prohibited by the provisions of Articles Ten or Twelve);
(2) default by the Company or any Subsidiary Guarantor in the
payment of any installment of interest on the Notes when due and payable
and continuance of such default for 30 days (whether or not such payment
shall be prohibited by the provisions of Articles Ten or Twelve);
(3) default by the Company or any Subsidiary Guarantor in the
deposit of any optional redemption payment, when and as due and payable
pursuant to Article Three;
(4) (i) failure to make any principal payment when due on any
other Indebtedness of the Company, any Subsidiary Guarantor or any
Restricted Subsidiary or (ii) any default on any other Indebtedness of the
Company, any Subsidiary Guarantor or any Restricted Subsidiary if such
default results in the acceleration of the maturity of any such
Indebtedness, if the Indebtedness referred to in (i) and (ii) that is in
default or the maturity of which has been so accelerated has a principal
amount of $5.0 million or more individually or taken together;
(5) default in the performance, or breach, of any other covenant
or agreement of the Company or any Subsidiary Guarantor in this Indenture,
the Notes or the Guarantees and failure to remedy such default within a
period of 60 days after written notice thereof from the Trustee or Holders
of at least 25% in principal amount of the then outstanding Notes;
(6) the entry by a court of one or more judgments or orders
against the Company, any Subsidiary Guarantor or any Restricted Subsidiary
in an aggregate amount in excess of $5.0 million (net of applicable
insurance coverage by a third party insurer which is acknowledged in
writing by such insurer) that has not been vacated, discharged, satisfied
or stayed pending appeal within 60 days from the entry thereof,
(7) a Guarantee by a Subsidiary Guarantor shall cease to be in
full force and effect (other than a release of a Guarantee in accordance
with Section 11.04) or any Subsidiary Guarantor shall deny or disaffirm
its obligations with respect thereto;
35
(8) the Company, any Subsidiary Guarantor or any Restricted
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it
in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing that it generally is unable to pay its
debts as the same become due; or
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief (with respect to the petition commencing
such case) against the Company, any Subsidiary Guarantor or any
Restricted Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company, any Subsidiary
Guarantor or any Restricted Subsidiary or for all or substantially
all of its respective property, or
(C) orders the liquidation of the Company, any Subsidiary
Guarantor or any Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clauses 8 and 9) under Section 6.01 occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the outstanding Notes may declare the unpaid principal of, premium, if any, and
accrued and unpaid interest on, all the Notes then outstanding to be due and
payable, by a notice in writing to the Company (and to the Trustee, if given by
Holders) and upon any such declaration such principal, premium, if any, and
accrued and unpaid interest shall become immediately due and payable,
notwithstanding anything contained in this Indenture or the Notes to the
contrary. If an Event of Default specified in clauses 8 or 9 above occurs, all
unpaid principal of, and accrued interest on, the Notes then outstanding will
become due and payable, without any declaration or other act on the part of the
Trustee or any Holder.
If (i) (A) the Company or any Subsidiary Guarantor has paid or deposited
with such Trustee a sum sufficient to pay (1) all overdue installments of
interest on all the Notes, (2) the principal of, and premium, if any, on any
Notes that have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed therefor in the Notes, (3)
to the extent that payment of such interest is lawful, interest on the defaulted
interest at the rate or rates prescribed therefor in the Notes, and (4) all
money paid or advanced by the Trustee thereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; (B) all Events of Default, other than the nonpayment of the
principal of any Notes that have
36
become due solely by such declaration of acceleration, have been cured or waived
as provided in the Indenture; and (C) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction and (ii) the Holders of
a majority in principal amount of then outstanding Notes give written notice to
the Company, the Subsidiary Guarantors and the Trustee of their desire to
rescind and annul a declaration of acceleration and its consequences, then such
declaration of acceleration shall be deemed rescinded and annulled. No such
rescission will affect any subsequent Event of Default or impair any right
consequent thereon.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue,
in its own name and as trustee of an express trust, any available remedy by
proceeding at law or in equity to collect the payment of principal or interest
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of at least a majority in
principal amount of Notes then outstanding by notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except a Default or
Event of Default in payment of principal or interest on the Notes, including any
optional redemption payments or Change of Control or Net Proceeds Offer
payments.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes then
outstanding will have the right, by an instrument or concurrent instruments in
writing executed and delivered to the Trustee, to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee under this Indenture or exercising any trust or power conferred on such
Trustee, provided that (i) such direction is not in conflict with any rule of
law or with this Indenture and (ii) the Trustee may take any other action deemed
proper by such Trustee that is not inconsistent with such direction.
Section 6.06. Limitation on Remedies.
No Holder of any of the Notes will have any right to institute any
proceeding, judicial or otherwise, or for the appointment of a receiver or
trustee or pursue any remedy under this Indenture, unless:
(1) such Holder has previously given notice to the Trustee of a
continuing Event of Default,
(2) the Holders of not less than 25% in principal amount of the
outstanding Notes have made written request to such Trustee to pursue such
remedy, including, if applicable, to institute proceedings in respect of
such Event of Default in its own name as Trustee under the Indenture,
(3) such Holder or Holders have offered to such Trustee reasonable
indemnity and security satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request,
(4) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any proceeding, and
(5) no direction inconsistent with such written request has been
given to such Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Notes.
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A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over other Holders.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the Holder of any
Notes will have the right, which is absolute and unconditional, to receive
payment of the principal of and interest on such Notes on the stated maturity
therefor and to institute suit for the enforcement of any such payment, and such
right may not be impaired without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium, if any, or
interest specified in Section 6.01(l), (2) or (3) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any Subsidiary Guarantor for the whole amount of
principal, premium, if any, and interest remaining unpaid with respect to the
Notes, and interest on overdue principal and premium, if any, and, to the extent
lawful, interest on overdue interest, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation and expenses of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
(a) The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Holders allowed in any judicial proceedings relative to the
Company, the Subsidiary Guarantors, their creditors or their property and may
collect and receive any money or other property payable or deliverable on any
such claims and to distribute the same.
(b) Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders of Senior Indebtedness to the extent required by
Article Ten;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable
on the Notes for principal and interest, respectively; and
Fourth: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs,
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including reasonable attorney's fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. The foregoing shall not apply to a suit by
the Trustee, a suit by a holder pursuant to Section 6.07 hereof, or a suit by
Holders or more than 10% in principal amount of the then outstanding Notes.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such rights and powers vested in it by this Indenture and use the
same degree of care and skill in such exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth (or incorporated by reference) in this Indenture
and no implied covenants or obligations shall be read into this Indenture
against Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall examine such certificates and opinions to determine
whether or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph (c) does not limit the effect of paragraph (b)
of this Section.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by an officer of the Trustee, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05, and the Trustee shall be entitled
from time to time to request such a direction.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall be under no obligation and may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
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Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely on and shall be protected in
acting or refraining from acting upon any document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities that might be incurred by it in compliance
with such request or direction;
(h) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder; and
(i) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or its Subsidiaries
or Affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
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Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Notes, it shall not be accountable for the Company's use of the
proceeds from the Notes, and it shall not be responsible for any statement in
the Notes other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is actually known to the
Trustee, the Trustee shall mail to each Holder pursuant to Section 13.02 a
notice of the Default within 90 days after the occurrence thereof. Except in the
case of a Default in any payment on any Note, the Trustee may withhold the
notice if and so long as the board of directors, executive committee or a trust
committee of its directors and/or officers in good faith determines that
withholding the notice is in the interests of Holders.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15, beginning with May 15, 2003, the Trustee
shall mail to each Holder a brief report dated as of such May 15 that complies
with TIA Section 313(a), but only if such report is required in any year under
TIA Section 313(a). The Trustee also shall comply with TIA Sections 313(b) and
313(c).
A copy of each report at the time of its mailing to Holders shall be filed
with the Commission and each stock exchange on which the Notes are listed. The
Company shall promptly notify the Trustee in writing if the Notes become listed
on any national securities exchange or of any delisting thereof.
Section 7.07. Compensation and Indemnity.
The Company and the Subsidiary Guarantors jointly and severally agree to
pay the Trustee from time to time such compensation as the Company and the
Trustee shall from time to time agree in writing for its services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust). The Company and
the Subsidiary Guarantors jointly and severally agree to reimburse the Trustee
upon request for all reasonable out-of-pocket expenses, disbursements and
advances incurred by it. Such expenses may include the reasonable compensation
and expenses of the Trustee's agents and counsel.
The Trustee shall not be under any obligation to institute any suit, or
take any remedial action under this Indenture, or to enter any appearance or in
any way defend any suit in which it may be a defendant, or to take any steps in
the execution of the trusts created hereby or thereby or in the enforcement of
any rights and powers under this Indenture, until it shall be indemnified to its
satisfaction against any and all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provisions of this
Indenture, including compensation for services, costs, expenses, outlays,
counsel fees and other disbursements, and against all liability not due to its
negligence or willful misconduct. The Company and the Subsidiary Guarantors
jointly and severally agree to indemnify each of the Trustee and any predecessor
trustee and their agents for and to hold them harmless against any and all loss,
liability, damage, claim or expense, including taxes (other than taxes based on
the income of Trustee) incurred by it in connection with the acceptance and
administration of the trust and its duties hereunder as Trustee, Registrar
and/or Paying Agent including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The Trustee shall notify the Company and the
Subsidiary Guarantors of any claim of which a Trust Officer has received written
notice and for which it may seek indemnity; provided, however, unless the
position of the Company is prejudiced by such failure, the failure of the
Trustee to promptly notify the Company shall not limit its right to
indemnification. The Company shall defend each such claim and the Trustee shall
cooperate in the defense. The Trustee may retain separate counsel if the Trustee
shall have been reasonably advised by such counsel that there may be one or more
legal defenses available to it that are different from or additional to those
available to the Company and in the reasonable judgment of such counsel it is
advisable for the Trustee to employ separate counsel, and the Company
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shall reimburse the Trustee for the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent.
Neither the Company nor the Subsidiary Guarantors shall be obligated to
reimburse any expense or indemnify against any loss or liability determined by a
court of competent jurisdiction to have been caused by the Trustee through the
Trustee's own negligence, willful misconduct or breach of its duties under this
Indenture.
To secure the payment obligations of the Company and the Subsidiary
Guarantors in this Section, the Trustee shall have a lien prior to that of the
Holders of the Notes on all money or property held or collected by the Trustee
for any amount owing it or any predecessor trustee pursuant to this section,
except that held in trust to pay principal of and interest on particular Notes.
When the Trustee incurs expenses or renders services after the occurrence
of any Event of Default specified in Section 6.01(8) or (9), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture and resignation or removal of the Trustee.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company and the Subsidiary
Guarantors. The Holders of a majority in principal amount of the Notes may
remove the Trustee by so notifying the Trustee, in writing. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting as Trustee hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company and the Subsidiary Guarantors.
Immediately after that, the retiring Trustee shall transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), the Company or the Holders of a majority in principal amount of
the Notes may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Any successor Trustee shall comply with TIA
Section 310(a)(5).
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Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust assets to, another corporation, the
successor corporation without any further act shall be the successor Trustee;
provided that such corporation or association shall be otherwise eligible and
qualified under this Article.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a combined
capital and surplus of at least $50 million as set forth in its most recent
published annual report of condition. The Trustee shall also comply with TIA
Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations.
(a) This Indenture shall cease to be of further effect (subject to
Section 8.05) when all outstanding Notes theretofore authenticated and issued
hereunder have been delivered (other than any Notes which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.07) to the Trustee for cancellation and the Company or the
Subsidiary Guarantors have paid all sums payable hereunder and under the Notes.
(b) In addition to the provisions of Section 8.01(a), at the Company's
option, either (i) the Company and all Subsidiary Guarantors shall be deemed to
have been discharged from their respective obligations with respect to the Notes
and the provisions of this Indenture (subject to Section 8.05) on the 91st day
after the applicable conditions set forth below have been satisfied or (ii) the
Company and all Subsidiary Guarantors shall cease to be under any obligation to
comply with any term, provision or condition set forth in Sections 4.02, 4.03,
4.05 through 4.16 and 5.01 and Articles Ten and Eleven with respect to the Notes
at any time after the applicable conditions set forth below have been satisfied:
(1) the Company or any Subsidiary Guarantor shall have deposited
or caused to be deposited irrevocably with the Trustee as trust funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders (i) U.S. Legal Tender or (ii) U.S. Government
Obligations, which through the payment of interest and principal in
respect thereof in accordance with their terms will provide (without any
reinvestment of such interest or principal), not later than one day before
the due date of any payment, U.S. Legal Tender or (iii) a combination of
(i) and (ii), in an amount sufficient, in the opinion (with respect to
(ii) and (iii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee at or prior to the time of such deposit, to pay and discharge each
installment of principal of, premium, if any, and interest on the
outstanding Notes on the dates such installments are due;
(2) the Company shall have delivered to the Trustee an Officers'
Certificate certifying as to whether the Notes are then listed on a
national securities exchange;
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(3) if the Notes are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Company's exercise of its option under
this Section 8.01 would not cause the Notes to be delisted;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or a
Subsidiary Guarantor is a party or by which any of them is bound, as
evidenced to the Trustee in an Officers' Certificate delivered to the
Trustee concurrently with such deposit;
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders will not recognize income, gain or loss
for federal income tax purposes as a result of the Company's exercise of
its option under this Section 8.01 and will be subject to federal income
tax on the same amount and in the same manner and at the same time as
would have been the case if such option had not been exercised, and, in
the case of the Notes being discharged, accompanied by a ruling to that
effect received from or published by the Internal Revenue Service (it
being understood that (A) such Opinion of Counsel shall also state that
such ruling is consistent with the conclusions reached in such Opinion of
Counsel and (B) the Trustee shall be under no obligation to investigate
the basis of correctness of such ruling);
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Company's exercise of its option under this
Section 8.01 will not result in any of the Company, the Trustee or the
trust created by the Company's deposit of funds hereunder becoming or
being deemed to be an "investment company" under the Investment Company
Act of 1940, as amended;
(7) the Company or any Subsidiary Guarantor shall have paid or
duly provided for payment of all amounts then due to the Trustee pursuant
to Section 7.07; and
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for in this Section 8.01 relating to the satisfaction
and discharge of this Indenture have been complied with.
Section 8.02. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with the provisions of the Notes and this Indenture to the payment of
principal of, premium, if any, and interest on the Notes.
Section 8.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any money or securities held by them at any time in excess of
amounts then required to pay principal of or interest on the Notes. The Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them for the payment of principal or interest that remains unclaimed for
two years; provided, however, that the Trustee or such Paying Agent before being
required to make any such repayment, may at the expense of the Company cause to
be published once in a newspaper of general circulation in The City of New York
or mail to each such Holder notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing any unclaimed balance of such money then
remaining will be paid to the Company. After repayment to the Company, any
Holder entitled to such money shall thereafter, as an unsecured general
creditor, look (unless an applicable abandoned property law designates another
Person) only to the Company for payment, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
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Section 8.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and the Subsidiary Guarantors' obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.01; provided, however, that if the Company or any Subsidiary
Guarantor has made any payment of interest on or principal of any Notes because
of the reinstatement of its obligations, the Company or such Subsidiary
Guarantor shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
Section 8.05. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of
the Notes referred to in Section 8.01(a) and (b), the respective obligations of
the Company, the Subsidiary Guarantors and the Trustee under Sections 2.02,
2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 4.04, 6.07, 7.07, 7.08, 8.02, 8.03, 8.04,
11.03 and 11.04 and Article Three shall survive until the Notes are no longer
outstanding, and thereafter the obligations of the Company and the Trustee under
Sections 7.07, 8.02 and 8.03 and 8.04 shall survive such satisfaction and
discharge. Nothing contained in this Article Eight shall abrogate any of the
obligations or duties of the Trustee under this Indenture.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company, the Subsidiary Guarantors and the Trustee may modify, amend
or supplement this Indenture or the Notes without notice to or consent of any
Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Sections 5.01 or 11.02;
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(4) to reflect the addition or release of any Subsidiary
Guarantor, as provided for by this Indenture;
(5) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(6) to make any change that would provide any additional benefit
or rights to the Holders or that does not adversely affect the rights of
any Holder.
Upon the request of the Company and the Subsidiary Guarantors, accompanied
by a Board Resolution of the Company and a resolution of the board of directors,
board of trustees or managing partners of each Subsidiary Guarantor authorizing
the execution of any such supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 9.06, the Trustee may, but shall
not be obligated to, join with the Company and the Subsidiary Guarantors in the
execution of any supplemental indenture authorized or permitted by the terms of
this Indenture and make any further appropriate agreements and stipulations that
may be therein contained. After an
45
amendment or waiver under this Section becomes effective, the Company shall mail
to the Holders of each Note affected thereby a notice briefly describing the
amendment or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 9.02. With Consent of Holders.
Except as provided below in this Section 9.02, the Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Notes with the
written consent (including consents obtained in connection with a tender offer
or exchange offer for Notes or a solicitation of consents in respect of Notes,
provided that in each case such offer or solicitation is made to all Holders of
then outstanding Notes on equal terms) of the Holders of at least a majority in
principal amount of the then outstanding Notes.
Upon the request of the Company and the Subsidiary Guarantors, accompanied
by a Board Resolution of the Company and a resolution of the board of directors,
board of trustees or managing partners of each Subsidiary Guarantor authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt
by the Trustee of the Opinion of Counsel documents described in Section 9.06,
the Trustee may, but shall not be obligated to, join with the Company and the
Subsidiary Guarantors in the execution of such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
The Holders of a majority in principal amount of the then outstanding
Notes may waive compliance in a particular instance by the Company or the
Subsidiary Guarantors with any provision of this Indenture or the Notes
(including waivers obtained in connection with a tender offer or exchange offer
for Notes or a solicitation of consents in respect of Notes, provided that in
each case such offer or solicitation is made to all Holders of the then
outstanding Notes on equal terms). However, without the consent of each Holder
affected, an amendment or waiver under this Section may not:
(1) reduce the percentage of principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture or the Notes;
(2) reduce the rate or change the time for payment of interest,
including defaulted interest, on the Notes;
(3) reduce the principal amount of any Note or change the Maturity
Date of the Notes;
(4) reduce the redemption price, including premium, if any,
payable upon the redemption of any Note or change the time at which any
Note may be redeemed;
(5) reduce the repurchase price, including premium, if any,
payable upon the repurchase of any Note pursuant to Section 4.11 or 4.16,
or change the time at which any Note may or shall be repurchased
thereunder;
(6) except as otherwise provided in this Indenture, waive a
continuing Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Notes;
(7) make any Note payable in money other than that stated in the
Note;
(8) impair the right to institute suit for the enforcement of
principal of, premium, if any, or interest on any Note pursuant to Section
6.07 or 6.08, except as limited by Section 6.06; or
(9) make any change in Section 6.04 or Section 6.07 or in this
sentence of this Section 9.02.
46
In addition, any amendment to, or waiver of, the provisions of this Indenture
relating to subordination that adversely affects the rights of the holders of
the Notes will require the consent of the holders of at least 75% in aggregate
principal amount of Notes then outstanding. In determining whether any such
amendment adversely affects the rights of the holders of the Notes, the Trustee
shall be provided with and may rely upon an Opinion of Counsel to such effect.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of this Indenture (and the obligation of the Company
to obtain any such consent otherwise required from such Holder) may be subject
to the requirement that such Holder shall have been the Holder of record of any
Notes with respect to which such consent is required or sought as of a date
identified by the Trustee in a notice furnished to Holders in accordance with
the terms of this Indenture.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver by a Holder of a Note
shall bind the Holder and every subsequent Holder of a Note or portion of a Note
that evidences the same debt as the consenting Holder's Note, even if notation
of the consent is not made on any Note. However, until an amendment, supplement
or waiver becomes effective, any such Holder or subsequent Holder may revoke the
consent as to his Note or portion of a Note. For such revocation to be
effective, the Trustee must receive the notice of revocation before the date the
amendment, supplement or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver. If the Company elects to fix a record date for such purpose, the record
date shall be fixed at (i) the later of 30 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 2.05, or (ii) such other
date as the Company shall designate. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent shall be valid or effective for
more than 90 days after such record date unless consent from the Holders of the
principal amount of Notes required hereunder for such amendment or waiver to be
effective also shall have been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder unless it makes a change described in any of clauses (1) through
(9) of Section 9.02. In that case the amendment, supplement or waiver shall bind
each Holder of a Note who has consented to it and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note.
Section 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms.
Section 9.06. Trustee Protected.
The Trustee shall sign any amendment or supplement or waiver authorized
pursuant to this Article. In signing such amendment or supplement or waiver the
Trustee shall be provided with, and (subject to Article Seven)
47
shall be fully protected in relying upon, an Opinion of Counsel stating that
such amendment or supplement or waiver is authorized or permitted by and
complies with this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
ARTICLE TEN
SUBORDINATION OF NOTES
Section 10.01. Notes Subordinated to Senior Indebtedness.
The Company, for itself and it successors, and each Holder, by his
acceptance of Notes, agrees that the payment of the principal of, premium, if
any, and interest on the Notes is subordinated, to the extent and in the manner
provided in this Article Ten, to the prior payment in full of all Senior
Indebtedness of the Company (hereinafter in this Article Ten referred to as
"Senior Indebtedness"). The Notes shall rank pari passu in right of payment with
all Pari Passu Indebtedness of the Company.
This Article Ten shall constitute a continuing offer to all Persons who
become holders of, or continue to hold, Senior Indebtedness, and such provisions
are made for the benefit of the holders of Senior Indebtedness, and such holders
are made obligees hereunder and any one or more of them may enforce such
provisions.
Section 10.02. No Payment on Notes in Certain Circumstances.
Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, unless and until all principal thereof, premium, if
any, interest thereon and other amounts due thereon shall first be paid in full,
no payment shall be made by or on behalf of the Company with respect to the
principal of, premium, if any, interest on or other amounts owing on the Notes
(except that, subject to applicable law, Holders may receive Subordinated
Securities of the Company).
Upon the happening of any default in the payment of any principal of or
interest on or other amounts due on any Senior Indebtedness (a "Payment
Default"), then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no payment shall be made by or on behalf of the
Company with respect to the principal of, premium, if any, interest on or other
amounts owing on the Notes.
Upon the happening of any default or event of default (other than a
Payment Default) (including any event which with the giving of notice or the
lapse of time or both would become an event of default and including any default
or event of default which would result upon any payment with respect to the
Notes) with respect to any Designated Senior Indebtedness, as such default or
event of default is defined therein or in the instrument or agreement or other
document under which it is outstanding, then upon written notice thereof given
to the Company and the Trustee by a holder or holders of any such Designated
Senior Indebtedness or their Representative ("Payment Notice"), no payment shall
be made by or on behalf of the Company with respect to the principal of,
premium, if any, interest on or other amounts owing on the Notes during the
period (the "Payment Blockage Period") commencing on the date of such receipt of
such Payment Notice and ending on the earlier of (i) the date, if any, on which
such default is cured or waived or ceases to exist or (ii) the date, if any, on
which the Designated Senior Indebtedness to which such default relates is
discharged, provided, however, that no default or event of default (other than a
Payment Default) shall prevent the making of any payment for more than 179 days
after the Payment Notice shall have been given. Notwithstanding the foregoing,
(i) not more than one Payment Notice shall be given within a period of 360
consecutive days, (ii) no event of default which existed or was continuing on
the date of any Payment Notice shall be made the basis for the giving of a
subsequent Payment Notice unless all such events of default shall have been
cured or waived for a period of at least 180 consecutive days after such date,
and (iii) if the Company or the Trustee receives any Payment Notice, a similar
notice relating to or arising out of the same default
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or facts giving rise to such default (whether or not such default is on the same
issue of Designated Senior Indebtedness) shall not be effective for purposes of
this paragraph.
The Company shall resume payments of principal of, premium, if any, and
interest on the Notes (i) in the case of a Payment Default, upon the date such
Payment Default is cured or waived by the holders of Senior Indebtedness to
which such Payment Default relates and (ii) in the case of a default or event of
default (other than a Payment Default) with respect to Designated Senior
Indebtedness, on the earlier of (A) the date such default or event of default is
cured or (B) the expiration of the Payment Blockage Period with respect thereto
if, in the case of this clause (B), this Article Ten otherwise does not prohibit
such payment.
In furtherance of the provisions of Section 10.01, in the event that,
notwithstanding the foregoing provisions of this Section 10.02, any payment
(other than a payment in the form of Subordinated Securities) with respect to
the principal of, premium, if any, or interest on the Notes shall be made by or
on behalf of the Company, and received by the Trustee, by any Holder or by any
such Paying Agent (or, if the Company is acting as its own Paying Agent, money
for any such payment shall be segregated and held in trust), at a time when such
payment was prohibited by the provisions of this Section 10.02, then, unless and
until such payment is no longer prohibited by this Section 10.02, such payment
(subject to the provisions of Sections 10.06 and 10.07) shall be received and
held in trust by the Trustee or such Holder or Paying Agent for the benefit of
and shall be immediately paid over to the holders of Senior Indebtedness or
their Representative, ratably according to the aggregate amounts remaining
unpaid on account of the principal of, premium, if any, and interest on the
Senior Indebtedness held or represented by each, for application to the payment
of all Senior Indebtedness in accordance with its terms, after giving effect to
any concurrent payment or distribution to or for the benefit of the holders of
Senior Indebtedness.
The provisions of this Section 10.02 shall not modify or limit in any way
the application of Section 10.03.
The Company shall give prompt written notice to the Trustee of any default
in the payment of any Senior Indebtedness or any acceleration under any Senior
Indebtedness or under any agreement pursuant to which Senior Indebtedness may
have been issued. Failure to give such notice shall not affect the subordination
of the Notes to the Senior Indebtedness or the application of the other
provisions provided in this Article Ten.
Section 10.03. Notes Subordinated to Prior Payment of All Senior Indebtedness
on Dissolution, Liquidation or Reorganization of the Company.
In the event of any Insolvency or Liquidation Proceeding with respect to
the Company, all amounts payable in respect of any Senior Indebtedness shall
first be paid in full before the Holders are entitled to receive any direct or
indirect payment or distribution of any cash, property or securities (other than
Subordinated Securities of the Company) on account of principal of or interest
on the Notes or any other payment with respect to the Notes.
The holders of Senior Indebtedness shall be entitled to receive directly,
for application to the payment of Senior Indebtedness (to the extent necessary
to pay in full all Senior Indebtedness, whether or not due, including
specifically, without limitation, all Post-Commencement Interest, whether or not
allowed as a claim in such Insolvency or Liquidation Proceedings, after giving
effect to any substantially concurrent payment or distribution to the holders of
Senior Indebtedness on account of Senior Indebtedness), any payment or
distribution of any kind or character, whether in cash, property or securities
(other than Subordinated Securities of the Company), including any payment or
distribution which may be payable or deliverable by reason of the payment of any
other Indebtedness of the Company being subordinated to the payment of the Notes
which may be payable or deliverable in respect of the Notes in any such
Insolvency or Liquidation Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section 10.03, the Trustee or any Paying Agent or the Holder of any Note shall
have received any payment from or distribution of assets of the Company or the
estate created by the commencement of any such Insolvency or Liquidation
Proceeding, of any kind or character in respect of the Notes, whether in cash,
property or securities (other than Subordinated Securities of the Company),
including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of the Company being
subordinated to the payment of the Notes, before all Senior Indebtedness
49
(whether or not due including specifically, without limitation, all
Post-Commencement Interest, whether or not allowed as a claim in such Insolvency
or Liquidation Proceeding) is paid in full, then and in such event such payment
or distribution shall be received and held in trust by the Trustee, any such
Paying Agent or Holder for and shall be paid over to the holders of Senior
Indebtedness (to the extent necessary to pay in full all such Senior
Indebtedness, whether or not due, including specifically, without limitation,
all Post-Commencement Interest thereon, whether or not allowed as a claim in
such Insolvency or Liquidation Proceeding), after giving effect to any
substantially concurrent payment or distribution to the holders of Senior
Indebtedness on account of Senior Indebtedness, for application to the payment
in full of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
Insolvency or Liquidation Proceeding with respect to it.
Section 10.04. Holders to Be Subrogated to Rights of Holders of Senior
Indebtedness.
After all amounts payable under or in respect of Senior Indebtedness
(whether or not due) are paid in full, the Holders shall be subrogated (without
any duty on the part of the holders of Senior Indebtedness to warrant, create,
effectuate, preserve or protect such subrogation), to the extent of the payments
or distributions made to the holders of Senior Indebtedness pursuant to the
provisions of this Article Ten (equally and ratably with the holders of all
other indebtedness of the Company which by its express terms is subordinate and
subject in right of payment to Senior Indebtedness to substantially the same
extent as the Notes are so subordinate and subject in right of payment and which
is entitled to like rights and subrogation), to the rights of the holders of
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness, until the principal of and
interest on the Notes shall be paid in full. For the purpose of such subrogation
no such payments or distributions to the holders of Senior Indebtedness by or on
behalf of the Company, or by or on behalf of the Holders by virtue of this
Article Ten, which otherwise would have been made to the Holders shall, as
between the Company and the Holders, be deemed to be payment by the Company to
or on account of the Senior Indebtedness, it being understood that the
provisions of this Article Ten are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
Senior Indebtedness, on the other hand.
Section 10.05. Obligations of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this Indenture or in
any Note is intended to or shall impair, as between the Company and the Holders,
the obligations of the Company, which are absolute and unconditional, to pay to
the Holders the principal of and interest on the Notes as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall effect the relative rights of the Holders and creditors of the Company,
other than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Ten, of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any distribution of assets of the Company
referred to in this Article Ten, the Trustee, subject to the provisions of
Section 7.01, and the Holders shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such Insolvency or
Liquidation Proceeding is pending, or a certificate of the liquidating trustee
or agent or other Person making any distribution to the Trustee or to the
Holders for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article Ten.
Section 10.06. Trustee Entitled to Assume Payments, Not Prohibited in Absence
of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until the Trustee or any Paying Agent shall have received
written notice at the address specified in Section 13.02 thereof from the
Company or from one or more holders of Senior Indebtedness or from any
Representative therefor and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 7.01, shall be entitled in all
respects conclusively to assume
50
that no such fact exists. Nothing in this Section 10.06 is intended to or shall
relieve any Holder from the obligations imposed under Sections 10.02 and 10.03
with respect to money or other distributions received in violation of the
provisions thereof.
Section 10.07. Application by Trustee of Assets Deposited With It.
All money and U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Section 8.01 shall be for the sole
benefit of the Holders and shall not be subject to this Article Ten. Otherwise,
any deposit of assets by the Company with the Trustee or any Paying Agent
(whether or not in trust) for the payment of principal of premium, if any, or
interest on any Notes shall be subject to the provisions of this Article Ten;
provided that, if prior to the second Business Day preceding the date on which
by the terms of this Indenture any such assets may become distributable for any
purpose (including without limitation, the payment of either principal of or
interest on any Note) the Trustee or such Paying Agent shall not have received
with respect to such assets the written notice provided for in Section 10.06,
then the Trustee or such Paying Agent shall have full power and authority to
receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date. The preceding sentence shall be construed
solely for the benefit of the Trustee and each Paying Agent and shall not
otherwise affect the rights of holders of Senior Indebtedness.
Section 10.08. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination provisions in this Article Ten shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
The holders of Senior Indebtedness may extend, renew, modify or amend the terms
of the Senior Indebtedness or any security therefor and release, sell or
exchange such security and otherwise deal freely with the Company, all without
affecting the liabilities and obligations of the parties to this Indenture or
the Holders.
Section 10.09. Holders Authorize Trustee to Effectuate Subordination of
Notes.
Each Holder of Notes by his acceptance thereof (i) authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Ten and to protect the rights of the Holders pursuant to this Indenture,
and (ii) appoints the Trustee his attorney-in-fact for such purpose, including
in the event of any Insolvency or Liquidation Proceeding with respect to the
Company, the timely filing of a claim for the unpaid balance of his Notes in the
form required in said proceeding and the causing of such claim to be approved.
If the Trustee shall not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the time
to file such claim or claims, then the holders of the Senior Indebtedness or
their Representative shall have the right to file an appropriate claim for and
on behalf of the Holders. Nothing herein contained shall be deemed to authorize
the Trustee or any holder of Senior Indebtedness or their Representative to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee or any holder of Senior
Indebtedness or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
Section 10.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Ten in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
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Section 10.11. Article Ten Not to Prevent Events of Default.
The failure to make a payment of principal of or interest on the Notes by
reason of any provision of this Article Ten shall not be construed as preventing
the occurrence of a Default or an Event of Default.
Section 10.12. Payment.
A payment with respect to a Note or with respect to principal of or
interest on a Note shall include, without limitation, payment of principal of
(and premium, if any) and interest on any Note, any depositing of funds under
Article Eight, any payment on account of any mandatory or optional repurchase or
redemption of any Note (including payments pursuant to Article Three or Section
4.10 or Section 4.16) and any payment or recovery on any claim (whether Section
4.10 or Section 4.16) and any payment or recovery on any claim (whether for
rescission damages and whether based on contract, tort, duty imposed by law, or
any other theory of liability) relating to or arising out of the offer, sale or
purchase of any Note, provided that any such payment, deposit, other payment or
recovery (i) not prohibited pursuant to this Article Ten at the time actually
made shall not be subject to any recovery by any holder of Senior Indebtedness
or Representative therefor or other Person pursuant to this Article Ten at any
time thereafter and (ii) made by or from any Person other than the Company shall
not be subject to any recovery by any holder of Senior Indebtedness or
Representative therefor or other Person pursuant to this Article Ten at any time
thereafter except to the extent such Person recovers any such amount paid from
the Company, whether pursuant to rights of indemnity, rescission or otherwise.
Section 10.13. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
Nothing in this Article shall apply to the claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
ARTICLE ELEVEN
GUARANTEES
Section 11.01. Unconditional Guarantee.
Each Subsidiary Guarantor hereby, jointly and severally, unconditionally
guarantees (such guarantee to be referred to herein as the "Guarantee") to each
Holder and to the Trustee the due and punctual payment of the principal of,
premium, if any, and interest on the Notes and all other amounts due and payable
under this Indenture and the Notes by the Company whether at maturity, by
acceleration, redemption, repurchase or otherwise, including, without
limitation, interest on the overdue principal of, premium, if any, and interest
on the Notes, to the extent lawful, all in accordance with the terms hereof and
thereof; subject, however, to the limitations set forth in Article Eleven and
Article Twelve.
Failing payment when due of any amount so guaranteed for whatever reason,
the Subsidiary Guarantors will be jointly and severally obligated to pay the
same immediately. Each Subsidiary Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Subsidiary Guarantor hereby waives diligence, presentment, demand of
payments, filing of claims
52
with a court in the event of insolvency or bankruptcy of the Company, any right
to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that this Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes, this
Indenture and in this Guarantee. If any Holder or the Trustee is required by any
court or otherwise to return to the Company, any Subsidiary Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or any Subsidiary Guarantor, any amount paid by the Company or any
Subsidiary Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor agrees it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article Six, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Subsidiary Guarantor for
the purpose of this Guarantee.
The guarantee of each Subsidiary Guarantor herein shall be, in the manner
and to the extent set forth in Article Twelve, subordinated in right of payment
to the prior payment when due of the principal of, premium, if any, accrued and
unpaid interest and all other amounts owing on all existing and future Senior
Indebtedness of such Subsidiary Guarantor and of the Company, as the case may
be, and senior to the right of payment of principal of, premium, if any, and
accrued and unpaid interest on all existing and future Subordinated Indebtedness
of such Subsidiary Guarantor.
Section 11.02. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of the Notes shall
prevent any consolidation or merger of a Subsidiary Guarantor with or into the
Company or another Subsidiary Guarantor or shall prevent any sale or conveyance
of all or substantially all of its assets to the Company or another Subsidiary
Guarantor.
(b) The Company may not sell the Capital Stock of a Subsidiary
Guarantor, and a Subsidiary Guarantor may not consolidate with or merge into or
sell all or substantially all of its assets (in a single transaction or series
of related transactions) to any Person other than the Company or another
Subsidiary Guarantor (whether or not affiliated with the Company or the
Subsidiary Guarantor), unless (i) with respect to a consolidation or merger of
such Subsidiary Guarantor, either (A)(1) the surviving entity is a Subsidiary of
the Company or, as a result of the transaction, becomes a Subsidiary of the
Company, (2) the surviving entity remains a Restricted Subsidiary of the Company
or, simultaneously with the consummation of the transaction, is designated as a
Restricted Subsidiary of the Company, (3) immediately after giving effect to
such transaction on a pro forma basis, the Consolidated Tangible Net Worth of
the surviving entity is equal to or greater than the Consolidated Tangible Net
Worth of such Subsidiary Guarantor immediately before such transaction, (4)
immediately after giving effect to such transaction on a pro forma basis, the
Company would be able to incur $1.00 of additional Indebtedness under the test
described in Section 4.09(a), (5) if the surviving entity is not the Subsidiary
Guarantor, the surviving entity agrees to assume such Subsidiary Guarantor's
Guarantee and all its obligations pursuant to this Indenture in accordance with
the provisions of Section 11.03, and (6) such transaction does not (x) violate
any covenant in the Indenture or (y) result in a Default or an Event of Default
immediately thereafter that is continuing or (B)(1) such transaction is made in
accordance with the covenant in Section 4.11 and (2) such transaction does not
(x) violate any other covenant in the Indenture or (y) result in a Default or
Event of Default immediately thereafter that is continuing and (ii) with respect
to the sale of the Capital Stock or all or substantially all of the assets of
such Subsidiary Guarantor, (A) such transaction is made in accordance with the
covenant in Section 4.11 and (B) such transaction does not (x) violate any other
covenants in the Indenture or (y) result in a Default or Event of Default
immediately thereafter that is continuing. In the case of any such
consolidation, merger, sale or conveyance involving the assumption by the
successor entity of a Subsidiary Guarantor's obligations under the Indenture,
such successor entity shall assume such obligations by supplemental indenture
executed and delivered to the Trustee in accordance with the provisions of
Section 11.03. Upon execution and delivery of such supplemental indenture, such
successor entity shall succeed to and be substituted for the Subsidiary
Guarantor with the same effect as if it had been named herein as a Subsidiary
Guarantor.
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Section 11.03. Addition of Subsidiary Guarantors.
(a) The Company agrees to cause each Person that shall become a Domestic
Subsidiary after the Issue Date to execute and deliver a supplemental indenture
pursuant to which such Restricted Subsidiary shall guarantee the payment of the
Notes pursuant to the terms hereof.
(b) Any Person who is not a Subsidiary Guarantor on the Issue Date may
become a Guarantor by executing and delivering to the Trustee (i) a supplemental
indenture in form and substance satisfactory to the Trustee, which subjects such
Person to the provisions (including the representations and warranties) of this
Indenture as a Subsidiary Guarantor and (ii) an Opinion of Counsel and Officers'
Certificate to the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the legal, valid, binding
and enforceable obligation of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be acceptable to
the Trustee and provided that no opinion need be rendered concerning the
enforceability of the Guarantee).
Section 11.04. Release of a Subsidiary Guarantor.
A Subsidiary Guarantor shall be deemed released from its Guarantee and all
of its obligations in this Indenture upon (i) (A) the sale of the Capital Stock
of such Subsidiary Guarantor, the consolidation or merger of such Subsidiary
Guarantor, or in the event of the liquidation and dissolution of such Subsidiary
Guarantor into the Company or any other Subsidiary Guarantor, made in accordance
with the provisions of either Section 11.02(b)(i)(B) or Section 11.02(b)(ii) or
(B) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary,
provided that such designation is made in accordance with the provisions of this
Indenture, and (ii) receipt of a request by the Company accompanied by an
Officers' Certificate and an Opinion of Counsel certifying that all conditions
specified in this Indenture for such release have been satisfied in accordance
with the provisions of this Indenture. Upon receipt of the items specified in
clause (ii) of the preceding sentence, the Trustee shall deliver to the Company
an appropriate instrument evidencing such release. Any Subsidiary Guarantor not
so released remains liable for the full amount of principal of and interest on
the Notes as provided in this Article Eleven.
Section 11.05. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Subsidiary Guarantor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of any federal, state or foreign law. To
effectuate the foregoing intention, the Holders and each Subsidiary Guarantor
hereby irrevocably agree that the obligations of each Subsidiary Guarantor under
the Guarantee shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Subsidiary Guarantor in respect of the obligations of
such other Subsidiary Guarantor under its Guarantee or pursuant to Section
11.06, result in the obligations of such Subsidiary Guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal, state or foreign law.
Section 11.06. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Guarantee, such Funding Guarantor shall be
entitled to a contribution from each other Subsidiary Guarantor for all
payments, damages and expenses incurred by the Funding Guarantor in discharging
the Company's obligations with respect to the Notes or any other Subsidiary
Guarantor's obligations with respect to the Guarantee.
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Section 11.07. Execution and Delivery of Guarantee.
To further evidence the Guarantees set forth in Section 11.01, each
Subsidiary Guarantor hereby agrees that a notation relating to such Guarantee,
in substantially the form of Exhibit A-1, shall be endorsed on each Note
authenticated and delivered by the Trustee and executed by either manual or
facsimile signature of two Officers of each Subsidiary Guarantor.
Each of the Subsidiary Guarantors hereby agrees that its Guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation relating to such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Note no longer holds that office at the time the Trustee authenticates such
security or at any time thereafter, such Subsidiary Guarantor's Guarantee of
such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of any Guarantee set forth in this
Indenture on behalf of the Subsidiary Guarantor.
Section 11.08. Severability.
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, that portion of such provision that is not invalid, illegal or
unenforceable shall remain in effect, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 11.09. Consent to Jurisdiction and Service of Process.
Each Subsidiary Guarantor that is not organized under the laws of the
United States or any state thereof (each a "Non-U.S. Subsidiary Guarantor")
hereby appoints the principal office of CT Corporation System in The City of New
York which, on the date hereof, is located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as the authorized agent thereof (the "Authorized Agent") upon whom
process may be served in any action, suit or proceeding arising out of or based
on this Indenture or the Notes which may be instituted in the Supreme Court of
the State of New York or the United States District Court for the Southern
District of New York, in either case in The Borough of Manhattan, The City of
New York, by the Holder of any Note, and each Non-U.S. Subsidiary Guarantor
hereby waives any objection which it may now have to the laying of venue of any
such proceeding and expressly and irrevocably accepts and submits, for the
benefit of the Holders from time to time of the Notes, to the nonexclusive
jurisdiction of any such court in respect of any such action, suit or
proceeding, for itself and with respect to its properties, revenues and assets.
Such appointment shall be irrevocable unless and until the appointment of a
successor authorized agent for such purpose, and such successor's acceptance of
such appointment, shall have occurred. Each Non-U.S. Subsidiary Guarantor agrees
to take any and all actions, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Authorized Agent with
respect to any such action shall be deemed, in every respect, effective service
of process upon any such Non-U.S. Subsidiary Guarantor. Notwithstanding the
foregoing, any action against any Non-U.S. Subsidiary Guarantor arising out of
or based on any Note may also be instituted by the Holder of such Note in any
court in the jurisdiction of organization of such Non-U.S. Subsidiary Guarantor,
and such Non-U.S. Subsidiary Guarantor expressly accepts the jurisdiction of any
such court in any such action. The Company shall require the Authorized Agent to
agree in writing to accept the foregoing appointment as agent for service of
process.
Section 11.10. Waiver of Immunity.
To the extent that any Non-U.S. Subsidiary Guarantor or any of its
properties, assets or revenues may have or may hereafter become entitled to, or
have attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the jurisdiction of
any court, from service of process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or
55
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with this Indenture or the Notes, such Non-U.S. Subsidiary
Guarantor, to the maximum extent permitted by law, hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement.
Section 11.11. Judgment Currency.
Each Non-U.S. Subsidiary Guarantor agrees to indemnify the Trustee and
each Holder against any loss incurred by it as a result of any judgment or order
against such Non-U.S. Subsidiary being given or made and expressed and paid In a
currency (the "Judgment Currency") other than United States dollars and as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the spot rate of exchange in The City of New
York at which the Trustee or such Holder on the date of payment of such judgment
or order is able to purchase United States dollars with the amount of the
Judgment Currency actually received by the Trustee or such Holder. The foregoing
indemnity shall constitute a separate and independent obligation of each
Non-U.S. Subsidiary Guarantor and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, United States dollars.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEES
Section 12.01. Guarantees Subordinated to Senior Indebtedness.
Each Subsidiary Guarantor, for itself and its successors, and each Holder,
by his acceptance of Notes, agrees that the Guarantees of such Subsidiary
Guarantor are subordinated, to the extent and in the manner provided in this
Article Twelve, to the prior payment in full of all Senior Indebtedness of such
Subsidiary Guarantor (hereinafter in this Article Twelve referred to as "Senior
Indebtedness"). The Guarantees shall rank pari passu in right of payment with
all guarantees by a Subsidiary Guarantor of Pari Passu Indebtedness of the
Company.
This Article Twelve shall constitute a continuing offer to all Persons who
become holders of, or continue to hold, Senior Indebtedness, and such provisions
are made for the benefit of the holders of Senior Indebtedness, and such holders
are made obligees hereunder and any one or more of them may enforce such
provisions.
Section 12.02. No Payment on Guarantees in Certain Circumstances.
Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, unless and until all principal thereof, premium, if
any, interest thereon and other amounts due thereon shall first be paid in full,
no payment shall be made by or on behalf of any Subsidiary Guarantor pursuant to
the Guarantees with respect to the principal of, premium, if any, interest on or
other amounts owing on the Notes.
Upon the happening of any default in the payment of any principal of,
premium, if any, or interest on or other amounts due on any Senior Indebtedness
(a "Payment Default"), then, unless and until such default shall have been cured
or waived or shall have ceased to exist, no payment shall be made by or on
behalf of any Subsidiary Guarantor pursuant to the Guarantees with respect to
the principal of, premium, if any, interest on or other amounts owing on the
Notes (except that, subject to applicable law, Holders may receive Subordinated
Securities of Subsidiary Guarantors).
Upon the happening of any default or event of default (other than a
Payment Default) (including any event which with the giving of notice or the
lapse of time or both would become an event of default and including any
56
default or event of default which would result upon any payment pursuant to the
Guarantees) with respect to any Senior Indebtedness of a Subsidiary Guarantor,
as such default or event of default is defined therein or in the instrument or
agreement or other document under which it is outstanding, then upon written
notice thereof given to the Subsidiary Guarantors and the Trustee by a holder or
holders of any Designated Senior Indebtedness or their Representative ("Payment
Notice"), no payment shall be made by or on behalf of the Subsidiary Guarantors
pursuant to the Guarantees with respect to the principal of, premium, if any,
interest on or other amounts owing on the Notes during the period (the "Payment
Blockage Period") commencing on the date of such receipt of such Payment Notice
and ending on the earlier of (i) the date, if any, on which such default is
cured or waived or ceases to exist or (ii) the date, if any, on which the
Designated Senior Indebtedness to which such default relates is discharged;
provided, however, that no default or event of default (other than a Payment
Default) shall prevent the making of any payment pursuant to the Guarantees for
more than 179 days after the Payment Notice shall have been given.
Notwithstanding the foregoing, (i) not more than one Payment Notice shall be
given within a period of 360 consecutive days, and (ii) no event of default
which existed or was continuing on the date of any Payment Notice shall be made
the basis for the giving of a subsequent Payment Notice unless all such events
of default shall have been cured or waived for a period of at least 180
consecutive days after such date, and (iii) if any Subsidiary Guarantor or the
Trustee receives any Payment Notice, a similar notice relating to or arising out
of the same default or facts giving rise to such default (whether or not such
default is on the same issue of Designated Senior Indebtedness) shall not be
effective for purposes of this paragraph.
The Subsidiary Guarantors shall resume payments of principal of, premium,
if any, and interest on the Guarantees (i) in the case of a Payment Default,
upon the date such Payment Default is cured or waived by the holders of Senior
Indebtedness to which such Payment Default relates and (ii) in the case of a
default or event of default (other than a Payment Default) with respect to
Designated Senior Indebtedness, on the earlier of (A) the date such default or
event of default is cured or (B) the expiration of the Payment Blockage Period
with respect thereto if, in the case of this clause (B), this Article Twelve
otherwise does not prohibit such payment.
In furtherance of the provisions of Section 12.01, in the event that,
notwithstanding the foregoing provisions of this Section 12.02, any payment
(other than a payment in the form of Subordinated Securities of Subsidiary
Guarantors) with respect to the principal of, premium, if any or interest on the
Notes shall be made by or on behalf of any Subsidiary Guarantor, and received by
the Trustee, by any Holder or by any Paying Agent (or, if the Company is acting
as its own Paying Agent, money for any such payment shall be segregated and held
in trust), at a time when such payment was prohibited by the provisions of this
Section 12.02, then, unless and until such payment is no longer prohibited by
this Section 12.02, such payment (subject to the provisions of Sections 12.06
and 12.07) shall be received and held in trust by the Trustee or such Holder or
Paying Agent for the benefit of and shall be immediately paid over to the
holders of Senior Indebtedness or their Representative, ratably according to the
aggregate amounts remaining unpaid on account of the principal of, premium, if
any, and interest on the Senior Indebtedness held or represented by each, for
application to the payment of all Senior Indebtedness in accordance with its
terms, after giving effect to any concurrent payment or distribution to or for
the benefit of the holders of Senior Indebtedness.
The provisions of this Section 12.02 shall not modify or limit in any way
the application of Section 12.03.
Each Subsidiary Guarantor shall give prompt written notice to the Trustee
of any default in the payment of any Senior Indebtedness of such Subsidiary
Guarantor or any acceleration under any such Senior Indebtedness or under any
agreement pursuant to which such Senior Indebtedness may have been issued.
Failure to give such notice shall not affect the subordination of the Guarantees
to the Senior Indebtedness or the application of the other provisions provided
in this Article Twelve.
Section 12.03. Guarantees Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of a Subsidiary
Guarantor.
In the event of any Insolvency or Liquidation Proceeding with respect to
any Subsidiary Guarantor, all amounts payable in respect of any Senior
Indebtedness of such Subsidiary Guarantor shall first be paid in full before the
Holders are entitled to receive any direct or indirect payment or distribution
of any cash, property or securities
57
(other than Subordinated Securities of Subsidiary Guarantors) pursuant to the
Guarantees on account of principal of, premium, if any, or interest on the Notes
or any other payment with respect to the Notes.
The holders of Senior Indebtedness shall be entitled to receive directly,
for application to the payment of Senior Indebtedness (to the extent necessary
to pay in full all Senior Indebtedness, whether or not due, including
specifically, without limitation, all Post-Commencement Interest, whether or not
allowed as a claim in such insolvency or Liquidation Proceeding, after giving
effect to any substantially concurrent payment or distribution to the holders of
Senior Indebtedness on account of Senior Indebtedness), any payment or
distribution of any kind or character, whether in cash, property or securities
(other than Subordinated Securities of Subsidiary Guarantors), including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other payment of any other indebtedness of such Subsidiary
Guarantor being subordinated to the payment of the Guarantees) which may be
payable or deliverable in respect of the Guarantees in any such Insolvency or
Liquidation Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section 12.03, the Trustee or any Paying Agent or the Holder of any Note shall
have received any payment from or distribution of assets of such Subsidiary
Guarantor or the estate created by the commencement of any such Insolvency or
Liquidation Proceeding, of any kind or character in respect of the Guarantees,
whether in cash, property or securities (other than Subordinated Securities of
Subsidiary Guarantors), including any payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of
such Subsidiary Guarantor being subordinated to the payment of the Guarantees,
before all Senior Indebtedness (whether or not due including specifically,
without limitation, all Post-Commencement Interest, whether or not allowed as a
claim in such Insolvency or Liquidation Proceeding) is paid in full, then and in
such event such payment or distribution shall be received and held in trust by
the Trustee, any such Paying Agent or Holder for and shall be paid over to the
holders of Senior Indebtedness (to the extent necessary to pay in full all such
Senior Indebtedness, whether or not due, including specifically, without
limitation, all Post-Commencement Interest thereon, whether or not allowed as a
claim in such Insolvency or Liquidation Proceeding), after giving effect to any
substantially concurrent payment or distribution to the holders of Senior
Indebtedness on account of Senior Indebtedness, for application to the payment
in full of such Senior Indebtedness.
The Company and each Subsidiary Guarantor shall give prompt written notice
to the Trustee of any Insolvency or Liquidation Proceeding with respect to such
Subsidiary Guarantor.
Section 12.04. Holders to Be Subrogated to Rights of Holders of Senior
Indebtedness.
After all amounts payable under or in respect of Senior Indebtedness
(whether or not due) are paid in full, the Holders shall be subrogated (without
any duty on the part of the holders of Senior Indebtedness to warrant, create,
effectuate, preserve or protect such subrogation), to the extent of the payments
or distributions made to the holders of Senior Indebtedness pursuant to the
provisions of this Article Twelve (equally and ratably with the holders of all
other indebtedness of any Subsidiary Guarantor which by its express terms is
subordinate and subject in right of payment to Senior Indebtedness to
substantially the same extent as the Guarantees are so subordinated and subject
in right of payment and which is entitled to like rights and subrogation), to
the rights of the holders of Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness, until the principal of and interest on the Notes shall be paid in
full. For the purpose of such subrogation no such payments or distributions to
the holders of Senior Indebtedness by or on behalf of the Company, or by or on
behalf of the Holders by virtue of this Article Twelve, which otherwise would
have been made to the Holders shall, as between any Subsidiary Guarantor and the
Holders, be deemed to be payment by such Subsidiary Guarantor to or on account
of the Senior Indebtedness, it being understood that the provisions of this
Article Twelve are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
Section 12.05. Guarantees Unconditional.
Except as otherwise provided herein, nothing contained in this Indenture
or in any Guarantee is intended to or shall impair, as between the Subsidiary
Guarantors and the Holders, the Guarantees, which are absolute and
58
unconditional, as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Subsidiary Guarantors, other than the holders of
the Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article Twelve, of the holders of Senior Indebtedness in respect of
cash, property or securities of any Subsidiary Guarantor received upon the
exercise of any such remedy. Upon any distribution of assets of any Subsidiary
Guarantor referred to in this Article Twelve, the Trustee, subject to the
provisions of Section 7.01, and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
Insolvency or Liquidation Proceedings is pending, or a certificate of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of such Subsidiary Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Twelve.
Section 12.06. Trustee Entitled to Assume Payments Not Prohibited in Absence
of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until the Trustee or any Paying Agent shall have received
written notice at the address specified in Section 13.02 thereof from the
Company or a Subsidiary Guarantor or from one or more holders of Senior
Indebtedness or from any Representative therefor and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 7.01,
shall be entitled in all respects conclusively to assume that no such fact
exits. Nothing in this Section 12.06 is intended to or shall relieve any Holder
from the obligations imposed under Sections 12.02 and 12.03 with respect to
money or other distributions received in violation of the provisions thereof.
Section 12.07. Application by Trustee of Assets Deposited With It.
All money and U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Section 8.01 shall be for the sole
benefit of the Holder and shall not be subject to this Article Twelve.
Otherwise, any deposit of assets by any Subsidiary Guarantor pursuant to the
Guarantees with the Trustee or any Paying Agent (whether or not in trust) for
the payment of principal of or interest on any Notes shall be subject to the
provisions of this Article Twelve; provided that, if prior to the second
Business Day preceding the date on which by the terms of this Indenture any such
assets may become distributable for any purpose (including without limitation,
the payment of either principal of or interest on any Note) the Trustee or such
Paying Agent shall not have received with respect to such assets the written
notice provided for in Section 12.06, then the Trustee or such Paying Agent
shall have full power and authority to receive such assets and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date. The
preceding sentence shall be construed solely for the benefit of the Trustee and
each Paying Agent and shall not otherwise affect the rights of holders of Senior
Indebtedness,
Section 12.08. Subordination Rights Not Impaired by Acts or Omissions of the
Subsidiary Guarantors or Holders of Senior Indebtedness.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination provisions in this Article Twelve shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Subsidiary Guarantor or by any act or failure to act by any such holder, or
by any noncompliance by the Company with the terms of this Indenture, regardless
of any knowledge thereof which any such holder may have or be otherwise charged
with. The holders of Senior Indebtedness may extend, renew, modify or amend the
terms of the Senior Indebtedness or any security therefor and release, sell or
exchange such security and otherwise deal freely with the Subsidiary Guarantors,
all without affecting the liabilities and obligations of the parties to this
Indenture or the Holders.
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Section 12.09. Holders Authorize Trustee to Effectuate Subordination of
Notes.
Each Holder of Notes by his acceptance thereof (i) authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Twelve and to protect the rights of the Holders pursuant to this
Indenture, and (ii) appoints the Trustee his attorney-in-fact for such purpose,
including in the event of any Insolvency or Liquidation Proceeding with respect
to any Subsidiary Guarantor, the timely filing of a claim of the unpaid balance
of his Notes pursuant to the Guarantees in the form required in said proceeding
and the causing of such claim to be approved. If the Trustee shall not file a
proper claim or proof of debt in the form required in such proceeding prior to
30 days before the expiration of the time to file such claim or claims, then the
holders of the Senior Indebtedness or their Representative shall have the right
to file an appropriate claim for and on behalf of the Holders. Nothing herein
contained shall be deemed to authorize the Trustee or any holder of Senior
Indebtedness or their Representative to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes, the Guarantees or the rights of
any Holder, or to authorize the Trustee or any holder of Senior Indebtedness or
their Representative to vote in respect of the claim of any Holder in any such
proceeding.
Section 12.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Twelve in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Section 12.11. Payment.
A payment pursuant to the Guarantees with respect to a Note or with
respect to principal of, premium, if any, or interest on a Note shall include,
without limitation, payment of principal of, premium, if any, and interest on
any Note, any depositing of funds under Article Four, any payment on account of
any mandatory or optional repurchase or redemption of any Note (including
payments pursuant to Article Three or Section 4.10 or Section 4.16) and any
payment or recovery on any claim (whether for rescission or damages and whether
based on contract, tort, duty imposed by law, or any other theory of liability)
relating to or arising out of the offer, sale or purchase of any Note, provided
that any such payment, deposit, other payment or recovery (i) not prohibited
pursuant to this Article Twelve at the time actually made shall not be subject
to any recovery by any holder of Senior Indebtedness or Representative therefor
or other Person pursuant to this Article Twelve at any time thereafter and (ii)
made by or from any Persons other than any Subsidiary Guarantor shall not be
subject to any recovery by any holder of Senior Indebtedness or Representative
therefor or other Person pursuant to this Article Twelve at any time thereafter
except to the extent such Person recovers any such amount paid from such
Subsidiary Guarantor, whether pursuant to rights of indemnity, rescission or
otherwise.
Section 12.12. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
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ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by operation of TIA Section 318(c), the imposed duties shall
control.
Section 13.02. Notices.
Any notice or communication shall be sufficiently given if in writing and
delivered in person or mailed by certified or registered mail (return receipt
requested), telecopier or overnight air courier guaranteeing next day delivery,
addressed as follows:
If to the Company or any Subsidiary Guarantor:
Giant Industries, Inc.
00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
The Company or any Subsidiary Guarantor or the Trustee by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication mailed to a Holder shall be mailed to him by
first-class mail at this address as it appears on the registration books of the
Registrar and shall be sufficiently given to him if so mailed within the time
prescribed. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it. If the Company or any
Subsidiary Guarantor mails notice or communications to Holders it shall mail a
copy to the Trustee and each Agent at the same time.
Section 13.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Subsidiary Guarantors, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
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Section 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Subsidiary Guarantor
to the Trustee to take any action under this Indenture (except with respect to
the initial issuance of the Notes), the Company or such Subsidiary Guarantor, as
the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements
set forth in Section 13.05) stating that, in the opinion of the signers,
the conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, such conditions precedent have been complied with.
Section 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such covenant or condition has been complied with.
Section 13.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or for a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules for its
functions.
Section 13.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which banks and
trust companies in The City of New York are not required by law or executive
order to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at the place on the next succeeding day that is not a Legal
Holiday, without additional interest.
Section 13.08. Governing Law.
THIS INDENTURE AND THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 13.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company, any Subsidiary Guarantor or any other Subsidiary.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
62
Section 13.10. No Recourse Against Others.
All liability described in paragraph 18 of the Notes of any director,
officer, employee or stockholder, as such, of the Company, the Subsidiary
Guarantors or the Trustee is waived and released.
Section 13.11. Successors.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture and the Notes shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
Section 13.12. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
instrument.
Section 13.13. Severability.
In case any provision in this 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, and a
Holder shall have no claim therefor against any party hereto.
63
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
GIANT INDUSTRIES, INC.
By: /s/ Xxxx X. Xxx
---------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
64
SUBSIDIARY GUARANTORS
Giant Industries Arizona, Inc.,
an Arizona corporation
By: /s/ Xxxx X. Xxx
-----------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
Ciniza Production Company,
a New Mexico corporation
By: /s/ Xxxx X. Xxx
------------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
Giant Stop-N-Go of New Mexico, Inc.,
a New Mexico corporation
By: /s/ Xxxx X. Xxx
-----------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
Giant Four Corners, Inc.,
an Arizona corporation
By: /s/ Xxxx X. Xxx
------------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
Phoenix Fuel Co., Inc.
an Arizona corporation
By: /s/ Xxxx X. Xxx
-------------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
San Xxxx Refining Company,
a New Mexico corporation
By: /s/ Xxxx X. Xxx
-------------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
65
Giant Mid-Continent, Inc.,
an Arizona corporation
By: /s/ Xxxx X. Xxx
-----------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
Giant Pipeline Company,
a New Mexico corporation
By: /s/ Xxxx X. Xxx
-----------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
DeGuelle Oil Company,
a Colorado corporation
By: /s/ Xxxx X. Xxx
-----------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
Giant Yorktown, Inc.,
a Delaware corporation
By: /s/ Xxxx X. Xxx
-----------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
Giant Yorktown Holding Company,
a Delaware corporation
By: /s/ Xxxx X. Xxx
------------------------------------------------
Name: Xxxx X. Xxx
Title: Chief Financial Officer and Director
66
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
GIANT INDUSTRIES, INC.
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR"S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT:
(A) SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY
(i) (a) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT,
(d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR")) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN
BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, OR (e) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
ISSUER SO REQUESTS),
(ii) TO THE ISSUER, OR
(iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS NOTE OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
A-2
11% SENIOR SUBORDINATED NOTES DUE 2012
No. _______________ $_____________________
CUSIP No. ___________
Giant Industries, Inc., a Delaware corporation, promises to pay to
______ or registered assigns the principal sum of______ Dollars on May 15, 2012.
Interest Payment Dates: May 15 and November 15, commencing November 15,
2002
Record Dates: May 1 and November 1.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-3
In Witness Whereof, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
GIANT INDUSTRIES, INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Dated:___________________
Certificate of Authentication:
The Bank of New York, as Trustee, certifies that this is one of the Notes
referred to in the within- mentioned Indenture.
By:
--------------------------
Authorized Signatory
A-4
[REVERSE OF NOTE]
GIANT INDUSTRIES, INC.
11% SENIOR SUBORDINATED NOTES DUE 2012
1. Interest. Giant Industries, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 11%
per annum from May 14, 2002 until maturity; provided, however, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Note from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured at a rate of 0.5% per annum with
respect to the first 90-day period following such Registration Default,
increasing by an additional 0.5% per annum with respect to each subsequent
90-day period until all Registration Defaults have been cured, up to a maximum
amount of additional interest of 1.5% per annum. The Company will pay interest
semiannually on May 15 and November 15 of each year (each an "Interest Payment
Date"), or if any such day is not a Business Day, on the next succeeding
Business Day. Interest on the Notes will accrue from the most recent Interest
Payment Date on which interest has been paid or, if no interest has been paid,
from May 14, 2002; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided further that
the first Interest Payment Date shall be November 15, 2002. The Company shall
pay interest on overdue principal and premium, if any, from time to time on
demand at a rate equal to the interest rate then in effect; it shall pay
interest on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment. The Company will pay interest on the Notes to the
persons who are registered holders of Notes at the close of business on the
record date immediately preceding the Interest Payment Date, even if such Notes
are cancelled after the record date and on or before the Interest Payment Date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company will pay principal of, premium, if any, and interest on the Notes in
money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
such amounts by check payable in such money. It may mail an interest check to a
Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without notice. The Company or any of its Subsidiaries may act
as Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under an Indenture, dated as
of May 14, 2002 (the "Indenture"), among the Company, the Subsidiary Guarantors
and the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbb) as in effect on the
date of the Indenture. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Indenture pursuant to which the
Notes are issued provides that an unlimited aggregate principal amount of Notes
may be issued thereunder.
5. Ranking and Guarantees. The Notes are general senior subordinated
unsecured obligations of the Company. The Company's obligation to pay principal,
premium, if any, and interest with respect to the Notes is unconditionally
guaranteed on a senior subordinated basis, jointly and severally, by the
Subsidiary Guarantors pursuant to Article Eleven of the Indenture. Certain
limitations to the obligations of the Subsidiary Guarantors are set forth in
further detail in the Indenture.
6. Optional Redemption. At any time on or after May 15, 2007, the
Company may, at its option, redeem all or any portion of the Notes at the
redemption prices (expressed as percentages of the principal amount of
A-5
the Notes) set forth below, plus, in each case, accrued interest thereon to the
applicable redemption date, if redeemed during the 12-month period beginning May
15 of the years indicated below:
Year Percentage
---- ----------
2007 105.500%
2008 103.667%
2009 101.833%
2010 and thereafter 100.000%
In addition, at any time prior to May 15, 2007, the Company may redeem
all or part of the Notes upon not less than 30 days nor more than 60 days'
notice at a redemption price equal to the sum of (i) the principal amount
thereof, (ii) accrued and unpaid interest, if any, to the applicable date of
redemption, and (iii) the Make-Whole Premium.
At any time and from time to time on or prior to May 15, 2005, the
Company may redeem in the aggregate up to 35% of the aggregate principal amount
of the Notes originally issued with the proceeds of one or more Public Equity
Offerings, at a redemption price (expressed as a percentage of principal amount)
of 111%, plus accrued and unpaid interest, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, however,
that at least 65% of the aggregate initial principal amount of the Notes must
remain outstanding after each such redemption. In order to effect the foregoing
redemption, the Company must mail notice of redemption in accordance with the
terms of the Indenture no later than 60 days after the related Public Equity
Offering.
7. Notice of Redemption. Notice of redemption will be mailed to the
Holder's registered address at least 30 days but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed. If less than all
Notes are to be redeemed, the Trustee shall select the Notes to be redeemed in
multiples of $1,000 pro rata, by lot or by any other method that the Trustee
considers fair and appropriate; provided that if the Notes are listed on any
securities exchange, that such method complies with the requirements of such
exchange. Notes in denominations larger than $1,000 may be redeemed in part. On
and after the redemption date interest ceases to accrue on Notes or portions of
them called for redemption (unless the Company shall default in the payment of
the redemption price or accrued interest).
8. Change of Control. In the event of a Change of Control of the
Company, the Company shall be required to make an offer to purchase each
Holder's Notes, at 101% of the principal amount thereof, plus accrued interest
to the Change of Control Payment Date.
9. Net Proceeds Offer. In the event of certain Asset Sales, the Company
may be required to make a Net Proceeds Offer to purchase pro rata or by lot all
or any portion of each Holder's Notes, at 100% of the principal amount of the
Notes plus accrued interest to the Net Proceeds Payment Date.
10. Restrictive Covenants. The Indenture imposes certain limitations
on, among other things, the ability of the Company to merge or consolidate with
any other Person or sell, lease or otherwise transfer all or substantially all
of its properties or assets, and the ability of the Company and its Restricted
Subsidiaries to dispose of certain assets, to pay dividends and make certain
other distributions and payments, to make certain investments or redeem, retire,
repurchase or acquire for value shares of Capital Stock, to incur additional
Indebtedness or incur encumbrances against certain property and to enter into
certain transactions with Affiliates, all subject to certain limitations
described in the Indenture.
11. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Notes selected for redemption. Also, it need not transfer or exchange any
Notes for a period of 15 days before the mailing of a notice of redemption of
Notes to be redeemed.
A-6
12. Persons Deemed Owners. The registered Holder of a Note may be
treated as the owner of it for all purposes and neither the Company, any
Subsidiary Guarantor, the Trustee nor any Agent shall be affected by notice to
the contrary.
13. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for one year, the Trustee or Paying Agent will pay the money
back to the Company at its written request. After that, all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
14. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes, and any past
default or noncompliance with any provision may be waived with the consent of
the Holders of a majority in principal amount of the Notes. In addition, any
amendment to, or waiver of, the provisions of this Indenture relating to
subordination that adversely affects the rights of the holders of the Notes will
require the consent of the holders of at least 75% in aggregate principal amount
of Notes then outstanding. Without the consent of any Holder, the Company may
amend or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency or to provide for uncertificated Notes in
addition to certificated Notes or to make any change that does not adversely
affect the rights of any Holder.
15. Successor Corporation. When a successor corporation assumes all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor corporation will be released from those obligations.
16. Defaults and Remedies. An event of default generally is: default by
the Company or any Subsidiary Guarantor for 30 days in payment of interest on
the Notes; default by the Company or any Subsidiary Guarantor in payment of
principal of or premium, if any, on the Notes; default by the Company or any
Subsidiary Guarantor in the deposit of any optional redemption payment when due
and payable; failure to pay at maturity or defaults resulting in acceleration
prior to maturity of certain other Indebtedness; failure by the Company or any
Subsidiary Guarantor for 60 days after notice to comply with any of its other
agreements in the Indenture; certain final judgments against the Company or
Subsidiaries; a failure of any Guarantee of a Subsidiary Guarantor to be in full
force and effect or denial by any Subsidiary Guarantor of its obligations with
respect thereto; and certain events of bankruptcy or insolvency. Subject to
certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately, except that in the case of an Event of Default arising from certain
events of bankruptcy, insolvency or reorganization relating to the Company, all
outstanding Notes shall become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity and security
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power. The Company must
furnish an annual compliance certificate to the Trustee.
17. Trustee Dealings with Company and Subsidiary Guarantors. The Bank
of New York, the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company, the Subsidiary Guarantors or their respective Subsidiaries or
Affiliates with the same rights it would have if it were not Trustee.
18. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company, any Subsidiary Guarantor or the Trustee,
shall not have any liability for any obligations of the Company, any Subsidiary
Guarantor or the Trustee, under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Notes.
19. Authentication. This Note shall not be valid until the Trustee or
an authenticating agent signs the certificate of authentication on the other
side of this Note.
A-7
20. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Notes as a convenience to Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Giant Industries, Inc.,
00000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Treasurer.
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________as agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Your Name:______________________________________________________________________
Date:_________________
Signature Guarantee:____________________________________________________________
A-9
CERTIFICATE OF TRANSFER (TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES)
This certificate relates to $_______________principal amount of Notes held in
(check applicable space)________ book-entry or ______definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the Depository a
Note or Notes in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Note (or the portion thereof indicated above);
or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
The undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
(1) [ ] acquired for the undersigned's own account, without
Transfer (in satisfaction of Section 2.06(a)(ii)(A) of the
Indenture); or
(2) [ ] transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933, as amended; or
(3) [ ] transferred pursuant to and in compliance with Rule 904
under the Securities Act of 1933, as amended; or
(4) [ ] transferred pursuant to and in compliance with Rule 144
under the Securities Act of 1933, as amended; or
(5) [ ] transferred to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act); or
(6) [ ] transferred pursuant to an effective registration
statement under the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof, provided, however, that (i) if box (3) is checked,
the Company and the Trustee will require the delivery of the certification set
forth as Annex A to this Note and such other evidence (which may include an
opinion of counsel) reasonably satisfactory to them as to the compliance with
Rule 904 under the Securities Act; (ii) if box (2) or (4) is checked, the
Company or the Trustee may require evidence reasonably satisfactory to them as
to the compliance with the restrictions set forth in the legend on the face of
this Note; and (iii) if box (5) is checked, the Company and the Trustee will
require the delivery of the certification set forth as Annex B to this Note and
such other evidence (which may include an opinion of counsel) reasonably
satisfactory to them that such transfer is in compliance with the Securities
Act.
_________________________________________
Signature
Signature Guarantee: _________________________________________
A-10
ANNEX A
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
______________,
The Bank of New York
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed sale of certain 11% Senior Subordinated
Notes due 2012 (the "Notes") of Giant Industries, Inc., a Delaware corporation
(the "Company"), we represent that:
(i) the offer of the Notes was not made to a person in the
United States;
(ii) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(iii) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the U.S. Securities Act of 1933, as
applicable; and
(iv) the transaction is not part of a plan or scheme to evade
the registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and you 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. Terms used in this certificate have the
meanings set forth in Regulation S under the U.S. Securities Act of 1933.
Very truly yours,
______________________________________
[Name]
By:___________________________________
Name:
Title:
Address:
A-11
ANNEX B
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO IAIS
______,
The Bank of New York
Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
In connection with our proposed purchase of $_________ aggregate
principal amount of the Notes, we represent that:
(i) We understand that any subsequent transfer of the Notes is subject
to certain restrictions and conditions set forth in the Indenture dated as of
May 14, 2002 (the "Indenture") relating to the Notes and the undersigned agrees
to be bound by, and not to resell, pledge or otherwise transfer the Notes except
in compliance with such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
(ii) We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes 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 any Notes within the time period referred to in Rule
144(k) of the Securities Act, 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 an aggregate principal amount of less than $100,000,
an opinion of counsel acceptable to the Company that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available) or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing any of
the Notes from us a notice advising such purchaser that resales of the Notes are
restricted as stated herein.
(iii) We understand that, on any proposed resale of any Notes, 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.
(iv) 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.
(v) We are acquiring the Notes 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.
A-12
Very truly yours,
________________________________
[Name]
By: ______________________________
Name:
Title
Address:
FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.11 or Section 4.16 of the Indenture, check the box: [ ]
If you want to have only part of this Note purchased by the Company
pursuant to Section 4.11 or Section 4.16 of the Indenture, state the amount (in
integral multiples of $1,000:
$_______________________
Date:___________________ Signature:_________________________________
(Sign exactly as your name appears
on the other side of this Note)
Name:___________________________________________________________________________
Signature Guarantee:____________________________________________________________
A-13
FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture), jointly and
severally, have unconditionally guaranteed the due and punctual payment of the
principal of, premium, if any, and interest on the Notes, and all other amounts
due and payable under the Indenture and the Notes by the Company, whether at
maturity, acceleration, redemption, repurchase or otherwise, including, without
limitation, the due and punctual payment of interest on the overdue principal
of, premium, if any, and interest on the Notes, to the extent lawful.
The obligations of the Subsidiary Guarantors pursuant to the Guarantee
are subject to the terms and limitations set forth in Articles Eleven and Twelve
of the Indenture, and reference is made thereto for the precise terms of the
Guarantee.
SUBSIDIARY GUARANTORS
Giant Industries Arizona, Inc.,
an Arizona corporation
Attest: By:
------------------------ ----------------------------------
Name:
Title:
Ciniza Production Company,
a New Mexico corporation
Attest: By:
------------------------ ----------------------------------
Name:
Title:
Giant Stop-N-Go of New Mexico, Inc.,
a New Mexico corporation
Attest: By:
------------------------ ----------------------------------
Name:
Title:
A-14
Giant Four Corners, Inc.,
an Arizona corporation
Attest: By:
------------------------ ----------------------------------
Name:
Title:
Phoenix Fuel Co., Inc.,
an Arizona corporation
Attest: By:
------------------------ ------------------------------
Name:
Title:
San Xxxx Refining Company,
a New Mexico corporation
Attest: By:
------------------------ ------------------------------
Name:
Title:
Giant Mid-Continent, Inc.,
an Arizona corporation
Attest: By:
------------------------ ------------------------------
Name:
Title:
Giant Pipeline Company,
a New Mexico corporation
Attest: By:
------------------------ -----------------------------
Name:
Title:
A-15
DeGuelle Oil Company,
a Colorado corporation
Attest: By:
------------------------ ---------------------------
Name:
Title:
Giant Yorktown, Inc.,
a Delaware corporation
Attest: By:
------------------------ ---------------------------
Name:
Title:
Giant Yorktown Holding Company,
a Delaware corporation
Attest: By:
------------------------ ---------------------------
Name:
Title:
A-16
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
DATE OF EXCHANGE AMOUNT OF DECREASE IN AMOUNT OF INCREASE IN PRINCIPAL AMOUNT OF THIS SIGNATURE OF AUTHORIZED
PRINCIPAL AMOUNT OF THIS PRINCIPAL AMOUNT OF THIS GLOBAL NOTE FOLLOWING SUCH SIGNATORY OF TRUSTEE OR NOTES
GLOBAL NOTE GLOBAL NOTE DECREASE OR INCREASE CUSTODIAN
A-17
EXHIBIT B
*[FORM OF FACE OF EXCHANGE NOTE]
11% SENIOR SUBORDINATED NOTES DUE 2012
No.______________ $________________
CUSIP No. __________
Giant Industries, Inc., a Delaware corporation, promises to pay to
_________________ or registered assigns the principal sum of ________________
Dollars on May 15, 2012.
Interest Payment Dates: May 15 and November 15, commencing November 15,
2002
Record Dates: May 1 and November 1
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
__________________________
* If the Note is to be issued in global form, add the Global Notes Legend
from Exhibit A and the attachment to Exhibit A captioned "[TO BE
ATTACHED TO GLOBAL NOTES] - SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL NOTE."
B-1
In Witness Whereof, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
GIANT INDUSTRIES, INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Dated:-------------------------
Certificate of Authentication:
The Bank of New York, as Trustee, certifies that this is one of the Notes
referred to in the within-mentioned Indenture.
By:
---------------------------------
Authorized Signatory
B-2
[REVERSE OF NOTE]
GIANT INDUSTRIES, INC.
11% SENIOR SUBORDINATED NOTES DUE 2012
1. Interest. Giant Industries, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 11%
per annum from May 14, 2002 until maturity. The Company will pay interest
semiannually on May 15 and November 15 of each year (each an "Interest Payment
Date"), or if any such day is not a Business Day, on the next succeeding
Business Day. Interest on the Notes will accrue from the most recent Interest
Payment Date on which interest has been paid or, if no interest has been paid,
from May 14, 2002; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided further that
the first Interest Payment Date shall be November 15, 2002. The Company shall
pay interest on overdue principal and premium, if any, from time to time on
demand at a rate equal to the interest rate then in effect; it shall pay
interest on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment. The Company will pay interest on the Notes to the
persons who are registered holders of Notes at the close of business on the
record date immediately preceding the Interest Payment Date, even if such Notes
are cancelled after the record date and on or before the Interest Payment Date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company will pay principal of, premium, if any, and interest on the Notes in
money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
such amounts by check payable in such money. It may mail an interest check to a
Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without notice. The Company or any of its Subsidiaries may act
as Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under an Indenture, dated as
of May 14, 2002 (the "Indenture"), among the Company, the Subsidiary Guarantors
and the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbb) as in effect on the
date of the Indenture. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Indenture pursuant to which the
Notes are issued provides that an unlimited aggregate principal amount of Notes
may be issued thereunder.
5. Ranking and Guarantees. The Notes are general senior subordinated
unsecured obligations of the Company. The Company's obligation to pay principal,
premium, if any, and interest with respect to the Notes is unconditionally
guaranteed on a senior subordinated basis, jointly and severally, by the
Subsidiary Guarantors pursuant to Article Eleven of the Indenture. Certain
limitations to the obligations of the Subsidiary Guarantors are set forth in
further detail in the Indenture.
6. Optional Redemption. At any time on or after May 15, 2007, the
Company may, at its option, redeem all or any portion of the Notes at the
redemption prices (expressed as percentages of the principal amount of the
Notes) set forth below, plus, in each case, accrued interest thereon to the
applicable redemption date, if redeemed during the 12-month period beginning May
15 of the years indicated below:
Year Percentage
---- ----------
2007 105.500%
2008 103.667%
B-3
2009 101.833%
2010 and thereafter 100.000%
In addition, at any time prior to May 15, 2007, the Company may redeem
all or part of the Notes upon not less than 30 days nor more than 60 days'
notice at a redemption price equal to the sum of (i) the principal amount
thereof, (ii) accrued and unpaid interest, if any, to the applicable date of
redemption, and (iii) the Make-Whole Premium.
At any time and from time to time on or prior to May 15, 2005, the
Company may redeem in the aggregate up to 35% of the aggregate principal amount
of the Notes originally issued with the proceeds of one or more Public Equity
Offerings, at a redemption price (expressed as a percentage of principal amount)
of 111%, plus accrued and unpaid interest, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, however,
that at least 65% of the aggregate initial principal amount of the Notes must
remain outstanding after each such redemption. In order to effect the foregoing
redemption, the Company must mail notice of redemption in accordance with the
terms of the Indenture no later than 60 days after the related Public Equity
Offering.
7. Notice of Redemption. Notice of redemption will be mailed to the
Holder's registered address at least 30 days but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed. If less than all
Notes are to be redeemed, the Trustee shall select the Notes to be redeemed in
multiples of $1,000 pro rata, by lot or by any other method that the Trustee
considers fair and appropriate; provided that if the Notes are listed on any
securities exchange, that such method complies with the requirements of such
exchange. Notes in denominations larger than $1,000 may be redeemed in part. On
and after the redemption date interest ceases to accrue on Notes or portions of
them called for redemption (unless the Company shall default in the payment of
the redemption price or accrued interest).
8. Change of Control. In the event of a Change of Control of the
Company, the Company shall be required to make an offer to purchase each
Holder's Notes, at 101% of the principal amount thereof, plus accrued interest
to the Change of Control Payment Date.
9. Net Proceeds Offer. In the event of certain Asset Sales, the Company
may be required to make a Net Proceeds Offer to purchase pro rata or by lot all
or any portion of each Holder's Notes, at 100% of the principal amount of the
Notes plus accrued interest to the Net Proceeds Payment Date.
10. Restrictive Covenants. The Indenture imposes certain limitations
on, among other things, the ability of the Company to merge or consolidate with
any other Person or sell, lease or otherwise transfer all or substantially all
of its properties or assets, and the ability of the Company and its Restricted
Subsidiaries to dispose of certain assets, to pay dividends and make certain
other distributions and payments, to make certain investments or redeem, retire,
repurchase or acquire for value shares of Capital Stock, to incur additional
Indebtedness or incur encumbrances against certain property and to enter into
certain transactions with Affiliates, all subject to certain limitations
described in the Indenture.
11. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Notes selected for redemption. Also, it need not transfer or exchange any
Notes for a period of 15 days before the mailing of a notice of redemption of
Notes to be redeemed.
12. Persons Deemed Owners. The registered Holder of a Note may be
treated as the owner of it for all purposes and neither the Company, any
Subsidiary Guarantor, the Trustee nor any Agent shall be affected by notice to
the contrary.
B-4
13. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for one year, the Trustee or Paying Agent will pay the money
back to the Company at its written request. After that, all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
14. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes, and any past
default or noncompliance with any provision may be waived with the consent of
the Holders of a majority in principal amount of the Notes. In addition, any
amendment to, or waiver of, the provisions of this Indenture relating to
subordination that adversely affects the rights of the holders of the Notes will
require the consent of the holders of at least 75% in aggregate principal amount
of Notes then outstanding. Without the consent of any Holder, the Company may
amend or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency or to provide for uncertificated Notes in
addition to certificated Notes or to make any change that does not adversely
affect the rights of any Holder.
15. Successor Corporation. When a successor corporation assumes all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor corporation will be released from those obligations.
16. Defaults and Remedies. An event of default generally is: default by
the Company or any Subsidiary Guarantor for 30 days in payment of interest on
the Notes; default by the Company or any Subsidiary Guarantor in payment of
principal of or premium, if any, on the Notes; default by the Company or any
Subsidiary Guarantor in the deposit of any optional redemption payment when due
and payable; failure to pay at maturity or defaults resulting in acceleration
prior to maturity of certain other Indebtedness; failure by the Company or any
Subsidiary Guarantor for 60 days after notice to comply with any of its other
agreements in the Indenture; certain final judgments against the Company or
Subsidiaries; a failure of any Guarantee of a Subsidiary Guarantor to be in full
force and effect or denial by any Subsidiary Guarantor of its obligations with
respect thereto; and certain events of bankruptcy or insolvency. Subject to
certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately, except that in the case of an Event of Default arising from certain
events of bankruptcy, insolvency or reorganization relating to the Company, all
outstanding Notes shall become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity and security
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power. The Company must
furnish an annual compliance certificate to the Trustee.
17. Trustee Dealings with Company and Subsidiary Guarantors. The Bank
of New York, the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company, the Subsidiary Guarantors or their respective Subsidiaries or
Affiliates with the same rights it would have if it were not Trustee.
18. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company, any Subsidiary Guarantor or the Trustee,
shall not have any liability for any obligations of the Company, any Subsidiary
Guarantor or the Trustee, under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Notes.
19. Authentication. This Note shall not be valid until the Trustee or
an authenticating agent signs the certificate of authentication on the other
side of this Note.
20. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
B-5
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Notes as a convenience to Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Giant Industries, Inc.,
00000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Treasurer.
B-6
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint------------------------------ as agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
him.
--------------------------------------------------------------------------------
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Your Name:
----------------------------------------------------------------------
Date:
------------------------------------
Signature Guarantee:
------------------------------------------------------------
B-7
FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.11 or Section 4.16 of the Indenture, check the box: [ ]
If you want to have only part of this Note purchased by the Company
pursuant to Section 4.11 or Section 4.16 of the Indenture, state the amount (in
integral multiples of $1,000):
$______________________
Date: Signature:
------------------------- ----------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Name:
---------------------------------------------------------------------------
Signature Guarantee:
------------------------------------------------------------
B-8
FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture), jointly and
severally, have unconditionally guaranteed the due and punctual payment of the
principal of, premium, if any, and interest on the Notes, and all other amounts
due and payable under the Indenture and the Notes by the Company, whether at
maturity, acceleration, redemption, repurchase or otherwise, including, without
limitation, the due and punctual payment of interest on the overdue principal
of, premium, if any, and interest on the Notes, to the extent lawful.
The obligations of the Subsidiary Guarantors pursuant to the Guarantee
are subject to the terms and limitations set forth in Articles Eleven and Twelve
of the Indenture, and reference is made thereto for the precise terms of the
Guarantee.
SUBSIDIARY GUARANTORS
Giant Industries Arizona, Inc.,
an Arizona corporation
Attest: By:
----------------------- ------------------------------------
Name:
Title:
Ciniza Production Company,
a New Mexico corporation
Attest: By:
----------------------- ------------------------------------
Name:
Title:
Giant Stop-N-Go of New Mexico, Inc.,
a New Mexico corporation
Attest: By:
----------------------- ------------------------------------
Name:
Title:
Giant Four Corners, Inc.,
an Arizona corporation
Attest: By:
----------------------- ------------------------------------
Name:
Title:
B-9
Ciniza Production Company,
a New Mexico corporation
Attest: By:
----------------------- ------------------------------------
Name:
Title:
Giant Stop-N-Go of New Mexico, Inc.,
a New Mexico corporation
Attest: By:
----------------------- ------------------------------------
Name:
Title:
Giant Four Corners, Inc.,
an Arizona corporation
Attest: By:
----------------------- ------------------------------------
Name:
Title:
Phoenix Fuel Co., Inc.,
an Arizona corporation
Attest: By:
----------------------- --------------------------------
Name:
Title:
San Xxxx Refining Company,
a New Mexico corporation
Attest: By:
----------------------- --------------------------------
Name:
Title:
B-10
Giant Mid-Continent, Inc.,
an Arizona corporation
Attest: By:
----------------------- --------------------------------
Name:
Title:
Giant Pipeline Company,
a New Mexico corporation
Attest: By:
----------------------- --------------------------------
Name:
Title:
DeGuelle Oil Company,
a Colorado corporation
Attest: By:
----------------------- --------------------------------
Name:
Title:
Giant Yorktown, Inc.,
a Delaware corporation
Attest: By:
----------------------- --------------------------------
Name:
Title:
Giant Yorktown Holding Company,
a Delaware corporation
Attest: By:
----------------------- --------------------------------
Name:
Title:
B-11
