EXHIBIT 4.5
8 3/8% SENIOR NOTES DUE 2007
INDENTURE, dated as of November 21, 1997 between Xxxxx Refining &
Marketing, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx, 00000, and Bankers Trust Company, a
New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of its 8
3/8% Senior Notes due 2007 (the "Initial Notes") which, subject to certain
conditions, are exchangeable for the Company's 8 3/8% Senior Notes due 2007
which are registrable under the Securities Act (the "Exchange Notes" and,
together with the Initial Notes, the "Notes" or the "Securities") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
The Company has duly authorized the creation of an issue of its 8 7/8%
Senior Subordinated Notes due 2007 (the "Senior Subordinated Notes") to be
issued pursuant to an indenture to be entered into between the Company and a
trustee (the "Senior Subordinated Note Indenture").
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE 1.
----------
DEFINITIONS AND OTHER PROVISIONS
--------------------------------
OF GENERAL APPLICATION
----------------------
Section 1.01. Definitions
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted and consistently applied in the United States which
are in effect on the date of this Indenture; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"9 1/2% Notes" means the Company's 9 1/2% Senior Notes due 2004.
"10 1/2% Notes" means the Company's 10 1/2% Senior Notes due 2001.
"10 7/8 % Notes" means the 10 7/8 % Senior Notes due 2005 of Xxxxx USA.
"144A Global Note" means a global note in the form of Exhibit A hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on
behalf of, and registered in the name of, the Depository or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person, (i) Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Subsidiary of such specified Person, including, without
limitation, Indebtedness incurred in connection with, or in contemplation of,
such other Person merging with or into or becoming a Subsidiary of such
specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AOC Payment" means all payments made to AOC Limited Partnership, a limited
partnership organized under the laws of the State of Missouri, constituting
"Additional Redemption Consideration" required to be paid by Xxxxx USA pursuant
to Section 2.4 of the Stock Purchase and Redemption Agreement.
2
"Applicable Procedures" means, with respect to any transfer or exchange of or
for beneficial interests in any Global Security, the rules and procedures of the
Depository, Euroclear and Cedel that apply to such transfer or exchange.
"Asset Disposition" by any Person means any transfer, conveyance, sale, lease
or other disposition by such Person or any of its Restricted Subsidiaries
(including a consolidation or merger or other sale of any such Restricted
Subsidiaries with, into or to another Person in a transaction in which such
Restricted Subsidiary ceases to be a Restricted Subsidiary, but excluding a
disposition by a Restricted Subsidiary of such Person to such Person or a
Restricted Subsidiary of such Person or by such Person to a Restricted
Subsidiary of such Person) of (i) shares of Capital Stock (other than directors'
qualifying shares) or other ownership interests of a Restricted Subsidiary of
such Person, (ii) substantially all of the assets of such Person or any of its
Restricted Subsidiaries representing a division or line of business or (iii)
other assets or rights of such Person or any of its Restricted Subsidiaries
outside of the ordinary course of business, which in the case of either clause
(i), (ii) or (iii), whether in a single transaction or a series of related
transactions, result in Net Available Proceeds in excess of $10 million;
provided that (x) any transfer, conveyance, sale, lease or other disposition of
assets securing the Credit Agreement in connection with the enforcement of the
security interests therein and (y) any sale of crude oil pursuant to the
contracts governing the transactions contemplated by the Gulf Merger Agreement
and the Gulf Oil Purchase Contract shall not be deemed an Asset Disposition
hereunder.
"Asset Disposition Trigger Date" has the meaning as specified in Section 9.16.
"Attributable Indebtedness" means the total net amount of rent required to be
paid during the remaining primary term of any particular lease under which any
person is at the time liable, discounted at the rate per annum equal to the
weighted average interest rate borne by the Notes.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to
Section 5.15 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Blackstone" means Blackstone Capital Partners III Merchant Banking Fund L.P.
and its affiliates.
"Blackstone Transaction" means the acquisition of 13,500,000 shares of common
stock of Xxxxx USA previously held by Trizec Xxxx Corporation and certain of its
subsidiaries.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and set forth in an Officers' Certificate delivered to the Trustee.
"Borrowing Base" means, as of any date, an amount equal to the sum of (i) 95%
of the accounts receivable owned by the Company and its Restricted Subsidiaries
(excluding any accounts receivable from Restricted Subsidiaries and any accounts
receivable that are more than
3
90 days past due) as of such date, plus (ii) 90% of the market value of
inventory owned by the Company and its Restricted Subsidiaries as of such date,
plus (iii) 100% of the cash and Cash Equivalents owned by the Company and its
Restricted Subsidiaries as of such date that are, as of such date, held in one
or more separate accounts under the direct control of the agent bank under the
Credit Agreement and that are as of such date pledged to secure working capital
borrowings under the Credit Agreement, minus (iv) the principal amount of
borrowings outstanding as of such date under the Credit Agreement to the extent
that the amount of such borrowings exceeds the sum of clauses (i) and (ii)
above, all of the foregoing calculated on a consolidated basis in accordance
with GAAP.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the Borough of Manhattan,
City of New York, are authorized or obligated by law, regulation or executive
order to close.
"Capital Lease" means, at the time any determination thereof is to be made,
any lease of property, real or personal or mixed, in respect of which the
present value of the minimum rental commitment would be capitalized on a balance
sheet of the lessee in accordance with GAAP.
"Capitalized Lease Obligation" of any Person means any lease of any property
(whether real, personal or mixed) by such Person as lessee which, in conformity
with GAAP, is required to be accounted for as a Capital Lease on the balance
sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, corporate stock, (ii)
in the case of any association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock and (iii) in the case of a partnership, partnership interests
(whether general or limited).
"Cash Equivalents" means (i) United States dollars, (ii) securities issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality thereof, (iii) certificates of deposit and eurodollar
time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank having
capital and surplus in excess of $500 million and a Xxxxx Bank Watch Rating of
"B" or better, (iv) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (ii) and (iii)
entered into with any financial institution meeting the qualifications specified
in clause (iii) above and (v) commercial paper having the highest rating
obtainable from Xxxxx'x or S&P and, in each case, maturing within six months
after the date of acquisition.
"Cedel Bank" means Cedel Bank, SA.
"Change of Control" means any transaction the result of which is that any
Person (an "Acquiring Person") other than Blackstone, or a Person a majority of
whose voting equity is owned by Blackstone, becomes the Beneficial Owner,
directly or indirectly, of shares of stock of the Company or Xxxxx USA entitling
such Acquiring Person to exercise 50% or more of the total voting power of all
classes of stock of the Company or Xxxxx USA, as the case may be, entitled to
4
vote in elections of directors. The term "Beneficial Owner" shall be determined
in accordance with Rule 13d-3 under the Exchange Act.
"Change of Control Triggering Event" means the occurrence of a Change of
Control resulting in a Rating Decline.
"Chevron Payment" means that certain contingent payment obligation of Xxxxx
USA to Chevron U.S.A. Inc. based on industry refining margins and the volume of
refined oil products produced at the Port Xxxxxx Refinery over a five-year
period, pursuant to Section 3.1(d) of the Asset Purchase Agreement, dated as of
August 18, 1994, between Xxxxx USA and Chevron U.S.A. Inc., as amended.
"Xxxxx USA" means Xxxxx USA, Inc., a Delaware corporation and the direct
parent of the Company.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board, its Vice Chairman of
the Board, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Adjusted Net Worth" of any Person means the total amount of
consolidated stockholder's equity (par value plus additional paid-in capital
(including all Capital Stock except as excluded below) plus retained earnings or
minus accumulated deficit) of such Person as reflected on the consolidated
balance sheet of such Person and its Restricted Subsidiaries for the most recent
Quarter prior to the event requiring such determination to be made, after
excluding (to the extent otherwise included therein and without duplication) the
following (the amount of such stockholder's equity and deductions therefrom to
be computed, except as noted below, in accordance with GAAP consistently
applied): (i) any amount receivable but not paid from sales of Capital Stock of
such Person or its Restricted Subsidiaries determined on a consolidated basis;
(ii) any revaluation or other write-up in book value of assets subsequent to the
date hereof (other than write-ups of oil inventory previously written down and
other than reevaluations or write-ups upon the acquisition of assets acquired in
a transaction to be accounted for by purchase accounting under GAAP); (iii)
treasury stock; (iv) an amount equal to the excess, if any, of the amount
reflected on the books and records of such Person or its Restricted Subsidiaries
for the securities of any Person which is not a Restricted Subsidiary of such
Person over the lesser of cost or market value (as determined in good faith by
the board of directors of such Person or such
5
Restricted Subsidiary); (v) Disqualified Capital Stock; (vi) equity securities
of such Person or its Restricted Subsidiaries which are not Disqualified Capital
Stock but which are exchangeable for or convertible into debt securities of such
Person or such Restricted Subsidiary, as the case may be, other than at the
option of such Person or such Restricted Subsidiary except to the extent that
the exchange or conversion rights in such other equity securities cannot, under
any circumstances, be exercised prior to Maturity; (vii) the cumulative foreign
currency translation adjustment, if any; and (viii) write-offs of non-cash items
in an amount not to exceed $80 million.
"Consolidated Net Operating Income" means, when used with reference to any
Person, for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, provided that (i) the Net Income of any Person which is
not a Subsidiary of such Person or is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid to such Person or its Restricted Subsidiaries, (ii) the Net
Income of any Unrestricted Subsidiary shall be excluded (except to the extent
distributed to the Company or one of its Subsidiaries), (iii) the Net Income of
any Person acquired in a pooling of interests transaction for any period prior
to the date of such acquisition shall be excluded, (iv) extraordinary gains and
losses and gains and losses from the sale of assets outside the ordinary course
of such Person's business shall be excluded, (v) the cumulative effect of
changes in accounting principles in the year of adoption of such changes shall
be excluded and (vi) the tax effect of any of the items described in clauses (i)
through (v) above shall be excluded.
"Consolidated Net Tangible Assets" of a Person means the consolidated total
assets of such Person and its Restricted Subsidiaries determined in accordance
with GAAP, less the sum of (i) all current liabilities and current liability
items, and (ii) all goodwill, trade names, trademarks, patents, organization
expense, unamortized debt discount and expense and other similar intangibles
properly classified as intangibles in accordance with GAAP.
"Consolidated Operating Cash Flow" means with respect to any Person,
Consolidated Net Operating Income of such Person and its Restricted Subsidiaries
without giving effect to gains and losses on securities transactions (net of
related taxes) for the period described below, increased by the sum of (i)
consolidated Fixed Charges of such Person and its Restricted Subsidiaries which
reduced Consolidated Net Operating Income for such period, (ii) consolidated
income tax expense (net of taxes relating to gains and losses on securities
transactions) of such Person and its Restricted Subsidiaries which reduced
Consolidated Net Operating Income for such period, (iii) consolidated
depreciation and amortization expense (including amortization of purchase
accounting adjustments) of such Person and its Restricted Subsidiaries and other
noncash items to the extent any of which reduced Consolidated Net Operating
Income for such period, (iv) expenses incurred in connection with the Blackstone
Transaction in an amount not to exceed $9 million, and (v) any annual management
monitoring, consulting and advisory fees and related expenses paid to Blackstone
and its affiliates in an amount not to exceed $2 million, less noncash items
which increased Consolidated Net Operating Income for such period, all as
determined for such Person and its consolidated Restricted Subsidiaries in
accordance with GAAP for the four full Quarters for which financial information
in respect thereof is available immediately prior to the Transaction Date.
6
"Consolidated Operating Cash Flow Ratio" means, with respect to any Person,
the ratio of (i) Consolidated Operating Cash Flow of such Person and its
Restricted Subsidiaries for the four Quarters for which financial information in
respect thereof is available immediately prior to the Transaction Date to (ii)
the aggregate Fixed Charges of such Person and its Restricted Subsidiaries for
such four Quarters, such Fixed Charges to be calculated on the basis of the
amount of the Indebtedness and Capitalized Lease Obligations of such Person and
its Restricted Subsidiaries outstanding on the Transaction Date and assuming the
continuation of market interest rate levels prevailing on the Transaction Date
in any calculation of interest rates in respect of floating interest rate
obligations; provided, however, that if such Person or any Restricted Subsidiary
of such Person shall have acquired, sold or otherwise disposed of any Material
Asset or engaged in an Equity Offering during the four full Quarters for which
financial information in respect thereof is available immediately prior to the
Transaction Date or during the period from the end of such fourth full Quarter
to and including the Transaction Date, the calculation required in clause (i)
above will be made giving effect to such acquisition, sale or disposition or the
other investment of the Net Available Proceeds of such Equity Offering on a pro
forma basis as if such acquisition, sale, disposition or investment had occurred
at the beginning of such four full Quarter period without giving effect to
clause (iii) of the definition of "Consolidated Net Operating Income" (that is,
including in such calculation the Net Income for the relevant prior period of
any Person acquired in a pooling of interests transaction, notwithstanding the
provisions of said clause (iii)); provided, further, that Fixed Charges of such
Person during the applicable period shall not include the amount of consolidated
interest expense which is directly attributable to Indebtedness to the extent
such Indebtedness is reduced by the proceeds of the incurrence of such
Indebtedness which gave rise to the need to calculate the Consolidated Operating
Cash Flow Ratio. Any such pro forma calculation may include adjustments
appropriate, in the reasonable determination of the Company as set forth in an
Officer's Certificate, to (i) reflect operating expense reductions reasonably
expected to result from the acquisition by the Company of such Material Asset or
(ii) eliminate the effect of any extraordinary accounting event with respect to
any acquired Person on Consolidated Net Operating Income.
"Corporate Trust Office" means the principal office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date of the execution of this Indenture is located at Four Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust and Agency Services
or at any other time at such other address as the Trustee may designate from
time to time by notice to the Noteholders.
"Credit Agreement" means that certain Credit Agreement, dated as of September
25, 1997, by and among the Company and the financial institutions party thereto,
including any related notes, recorded or otherwise perfected under applicable
law (including any conditional sale or other title guarantees, collateral
documents, instruments and agreements executed in connection therewith), and in
each case as amended, modified, extended, renewed, refunded, replaced or
refinanced from time to time.
"Default" means any event which is, or after notice or passage of time or both
would be, an Event of Default.
7
"Defaulted Interest" has the meaning specified in Section 2.12.
"Definitive Securities" means certificated Securities that are in the form of
the Securities set forth in Article Two hereof, that do not include the
information called for by Section 2.06(g)(ii).
"Depository" means, with respect to Securities issuable or issued in whole or
in part in global form, the Person specified in Section 2.03 hereof as the
Depository with respect to the Securities, until a successor shall have been
appointed and become such Depository pursuant to the applicable provisions of
this Indenture, and, thereafter, "Depository" shall mean or include such
successor.
"Disposition" means, with respect to any Person, any merger, consolidation or
other business combination involving such Person (whether or not such Person is
the Surviving Person) or the sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of such Person's assets.
"Disqualified Capital Stock" means any Capital Stock of the Company that,
either by its terms or by the terms of any security into which it is convertible
or exchangeable, is, or upon the happening of any event or passage of time would
be, required to be redeemed or purchased (other than pursuant to an offer to
repurchase such Capital Stock following a change of control, which offer may not
be completed until 45 days after completion of the Offer described in Section
12.01), including at the option of the holder, in whole or in part, or has, or
upon the happening of an event or passage of time would have, a redemption,
sinking fund or similar payment due, on or prior to November 15, 2007.
"Equity Offering" means any public or private sale of Capital Stock (including
options, warrants or rights with respect thereto) of the Company or of Xxxxx
USA.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels office,
as operator of the Euroclear system.
"Event of Default" has the meaning as specified in Section 4.01.
"Excess Proceeds" has the meaning as specified in Section 9.16.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Exchange Debentures" means the 11 1/2% Subordinated Exchange Debentures due
2009 which may be exchanged for the Exchangeable Preferred Stock of Xxxxx USA,
at the option of Xxxxx USA.
"Exchange Offer" means the offer that may be made by the Company pursuant to
the Registration Rights Agreement to exchange Initial Notes for Exchange Notes.
8
"Exchangeable Preferred Stock" means the 11 1/2% Senior Cumulative
Exchangeable Preferred Stock of Xxxxx USA.
"Excluded Contribution" means the net cash proceeds received by the Company
after the Issue Date from (a) contributions to its common equity capital and (b)
the sale (other than to a Subsidiary or to any Company or Subsidiary management
equity plan or stock option plan or any other management or employee benefit
plan or agreement) of Capital Stock of the Company (other than Disqualified
Capital Stock), in each case, designated as Excluded Contributions pursuant to
an Officers' Certificate.
"Existing Indebtedness" means any Indebtedness of the Company and its
Subsidiaries incurred on or outstanding as of the Issue Date and in any event
Indebtedness evidenced by the Credit Agreement whether or not outstanding on the
Issue Date.
"Fixed Charges" of any Person means, for any period, the sum of (i)
consolidated Interest Expense of such Person and its Restricted Subsidiaries,
plus (ii) all but the principal component of rentals in respect of consolidated
Capitalized Lease Obligations of such Person and its Restricted Subsidiaries
paid, accrued or scheduled to be paid or accrued by such Person and its
Restricted Subsidiaries during such period, and determined in accordance with
GAAP plus (iii) all cash dividend payments (excluding items eliminated in
consolidation) on any series of preferred stock of such Person. For purposes of
this definition, (a) interest on Indebtedness which accrues on a fluctuating
basis for periods succeeding the date of determination shall be deemed to accrue
at a rate equal to the average daily rate of interest in effect during such
immediately preceding Quarter, and (b) interest on a Capitalized Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
in good faith by the chief financial officer, treasurer or controller of such
Person to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP (including Statement of Financial Accounting Standards
No. 13 of the Financial Accounting Standards Board).
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entities as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
"Global Note Legend" means the legend set forth in Section 2.06(g)(ii), which
is required to be placed on all Global Securities issued under this Indenture.
"Global Security" means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global Notes, in the form of Exhibit A hereto
issued in accordance with Article 2 hereof.
"Guaranty" means a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including,
9
without limitation, letters of credit and reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Gulf Merger Agreement" means the Agreement and Plan of Merger, dated as of
November 3, 1995, among the Company, Gulf Resources Corporation and GFR, Inc.
"Gulf Oil Purchase Contract" means the Crude Oil Purchase Contract between
GFR, Inc. and Gulf Resources Corporation.
"Gulf Payments" means all payments (other than the initial purchase price of
$26.9 million under the Gulf Oil Purchase Contract) to Gulf Resources
Corporation, a Panamanian corporation, and/or any of its Affiliates, in each
case, pursuant to the Gulf Merger Agreement, the Gulf Oil Purchase Contract, the
Gulf Stockholders' Agreement and the Gulf Pledge Agreement, as each is in effect
on the date hereof.
"Gulf Pledge Agreement" means the Pledge Agreement among the Company, Gulf
Resources Corporation and Gulf Resources Holdings, Inc.
"Gulf Stockholders' Agreement" means the Stockholders' Agreement among the
Company, Gulf Resources Corporation and Gulf Resources Holdings, Inc.
"Holder" means a Person in whose name a Security is registered in the Security
Register.
"IAI Global Note" means the Global Security in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of and registered in the name of the Depository or its nominee
and that will be issued in a denomination equal to the outstanding principal
amount of the Notes sold to Institutional Accredited Investors.
"Indebtedness" with respect to any Person, means any indebtedness, including,
in the case of the Company, the indebtedness evidenced by the Notes, whether or
not contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or representing the balance deferred and unpaid
of the purchase price of any property (including pursuant to Capital Leases)
(except any such balance that constitutes a trade payable in the ordinary course
of business that is not overdue by more than 90 days from the invoice date or is
being contested in good faith), if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet of such Person
prepared on a consolidated basis in accordance with GAAP, and shall also
include, to the extent not otherwise included, the Guaranty of Indebtedness of
other Persons not included in the financial statements of the Company, the
maximum fixed redemption or repurchase price of Disqualified Capital Stock (or
if not redeemable or subject to repurchase, the issue price) and the maximum
fixed redemption or repurchase price (or if not redeemable or subject to
repurchase, the issue price) of Preferred Stock issued by any Restricted
Subsidiary of the Company to any Person other than to the Company or a
Restricted Subsidiary.
10
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Security through a Participant.
"Initial Purchaser" means an entity that purchases Securities directly from
the Company on the Issue Date.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Interest Expense" of any Person means, for any period, the aggregate amount
of interest expense in respect of Indebtedness (excluding (a) the Chevron
Payment, (b) the AOC Payment, (c) the Gulf Payments and (d) the amortization of
debt issuance expense relating to the Securities, the Senior Subordinated Notes
and the Loan Agreement, but including without limitation or duplication (i)
amortization of debt issuance expense with respect to other Indebtedness, (ii)
amortization of original issue discount on any Indebtedness and (iii) the
interest portion of any deferred payment obligation, all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financings and the net cost associated with Interest Swap
Obligations) paid, accrued or scheduled to be paid or accrued by such Person
during such period, determined in accordance with GAAP.
"Interest Payment Date" means each May 15 and November 15, or if any such day
is not a Business Day, on the next succeeding Business Day.
"Interest Swap Obligations" means, when used with reference to any Person, the
obligations of such person under (i) interest rate swap agreements, interest
rate exchange agreements, interest rate cap agreements, and interest rate collar
agreements, (ii) currency swap agreements and currency exchange agreements and
(iii) other similar agreements or arrangements, which are, in each such case,
designed solely to protect such Person against fluctuations in interest rates or
currency exchange rates.
"Investment" means, when used with reference to any Person, any direct or
indirect advances, loans or other extensions of credit or capital contributions
by such Person to (by means of transfers of property to others or payments for
property or services for the account or use of others, or otherwise), or
purchases or acquisitions by such Person of Capital Stock, bonds, notes,
debentures or other securities issued by, any other Person or any Guaranty or
assumption of any liability (contingent or otherwise) by such Person of any
Indebtedness or Obligations of any other Person and all other items that are or
would be classified as investments on a balance sheet prepared in accordance
with GAAP.
11
"Investment Grade" means (i) a Xxxxx'x rating of Baa3 or higher and an S&P
rating of at least BB+ or (ii) an S&P rating of BBB- or higher and a Xxxxx'x
rating of at least Ba1 or, in each case, if Xxxxx'x or S&P shall change their
rating system, equivalent ratings.
"Investment Grade Rating Event" means the assignment of an Investment Grade
rating by Xxxxx'x or S & P.
"Issue Date" means November 21, 1997.
"Letter of Transmittal" means the letter of transmittal to be prepared by the
Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind (except for taxes not yet owing) in
respect of such asset, whether or not filed, retention agreement, any lease in
the nature thereof, any option or other agreement to sell and, with respect to
which, any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Loan Agreement" means the credit agreement, dated as of November 21, 1997,
among the Company, certain lenders, Xxxxxxx Xxxxx Credit Partners L.P., as
arranger, administrative agent and syndication agent and State Street Bank and
Trust Company of Missouri, N.A., as paying agent, as amended from time to time.
"Material Asset" means, with respect to the Company or any Restricted
Subsidiary of the Company, any asset, related group of assets, business or
division of the Company or any Restricted Subsidiary of the Company (including
any capital stock of any Restricted Subsidiary of the Company) which (i) for the
most recent fiscal year of the Company, accounted or would have accounted for
more than 3% of the consolidated revenues of the Company or (ii) as at the end
of such fiscal year, represented or would have represented more than 3% of the
consolidated assets of the Company or has a fair market value in excess of $10
million, all as shown (x) with respect to any sale or disposition, on the
consolidated financial statements of the Company for such fiscal year or such
shorter period as such assets, business or divisions were owned by the Company
or any Restricted Subsidiary of the Company and (y) with respect to any
acquisition, on consolidated pro forma financial statements of the Company for
the four full Quarters for which financial information in respect thereof is
available immediately prior to such acquisition, giving effect thereto on a pro
forma basis as if such acquisition had occurred at the beginning of such four
full Quarters.
"Maturity" means, with respect to any Notes, the date on which the principal
of such Notes becomes due and payable as provided herein, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
12
"Net Available Proceeds" means cash or readily marketable cash equivalents
received (including by way of sale or discounting of a note, installment
receivable or other receivable, but excluding any other consideration received
in the form of assumption by the acquiree of Indebtedness or other obligations
relating to such properties or assets or received in any other noncash form) net
of (i) all legal and accounting expenses, commissions and other fees and
expenses incurred and all federal, state, provincial, foreign and local taxes
required to be accrued as a liability as a consequence of such issuance, and
(ii) all payments made by such Person or its Subsidiaries on any Indebtedness
which must, in order to obtain a necessary consent to such issuance or by
applicable law, be repaid out of the proceeds from such issuance.
"Net Income" of any Person for any period means the net income (loss) from
continuing operations of such Person for such period, determined in accordance
with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company nor
any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Obligations" means any principal (and premium, if any), interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Offer" has the meaning as specified in Section 10.09.
"Officers' Certificate" means a certificate signed by at least two officers of
the Company, one signature being that of the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President, and the other
signature being that of the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 9.04 shall
be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and whose opinion is reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
13
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which have been paid pursuant to Section 2.07 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
a Responsible Officer of the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Participant" means, with respect to the Depository, Euroclear or Cedel, a
Person who has an account with the Depository, Euroclear or Cedel, respectively
(and, with respect to The Depository Trust Company, shall include Euroclear and
Cedel).
"Paying Agent" means any Person authorized by the Company to pay the principal
of or any premium or interest on any Securities on behalf of the Company. The
Company initially appoints the Trustee as Paying Agent.
"Permitted Indebtedness" means Indebtedness incurred by the Company or its
Restricted Subsidiaries (i) to renew, extend, refinance or refund Indebtedness
that is permitted to be incurred pursuant to the Consolidated Operating Cash
Flow Ratio test set forth in Section 9.12 or clauses (ii) through (iv) and (xi)
below; provided, however, that such Indebtedness does not exceed the principal
amount of the Indebtedness so renewed, extended, refinanced or refunded plus the
amount of any premium required to be paid in connection with such refinancing
pursuant to the terms of the Indebtedness refinanced or the amount of any
premium reasonably determined by the Company or such Restricted Subsidiary as
necessary to accomplish such refinancing by means of a tender offer or privately
negotiated repurchase, plus the expenses of the Company or
14
such Restricted Subsidiary incurred in connection with such refinancing; and
provided, however, that Indebtedness the proceeds of which are used to refinance
or refund such Indebtedness shall only be permitted if (A) in the case of any
refinancing or refunding of Indebtedness that is pari passu with the Notes the
refinancing or refunding Indebtedness is made pari passu with the Notes or
subordinated to the Notes, (B) in the case of any refinancing or refunding of
Indebtedness that is subordinated to the Notes the refinancing or refunding of
Indebtedness is made subordinated to the Notes at least to the same extent as
such Indebtedness being refinanced or refunded was subordinated to the Notes and
(C) in the case of the refinancing or refunding of Indebtedness that is
subordinated to the Notes, the refinancing or refunding Indebtedness by its
terms, or by the terms of any agreement or instrument pursuant to which such
Indebtedness is issued, (x) does not provide for payments of principal of such
Indebtedness at the stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any mandatory redemption, defeasance, retirement
or repurchase thereof by the Company or such Restricted Subsidiary (including
any redemption, retirement or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by virtue of acceleration
of such Indebtedness upon an event of default thereunder), in each case prior to
the final stated maturity of the Indebtedness being refinanced or refunded and
(y) does not permit redemption or other retirement (including pursuant to an
offer to purchase made by the Company or such Restricted Subsidiary) of such
Indebtedness at the option of the holder thereof prior to the final stated
maturity of the Indebtedness being refinanced or refunded, other than a
redemption or other retirement at the option of the holder of such Indebtedness
(including pursuant to an offer to purchase made by the Company or such
Restricted Subsidiary), which is conditioned upon the change of control of the
Company or such Restricted Subsidiary); (ii) arising from time to time under the
Credit Agreement in an aggregate principal amount which, together with any
obligations under clause (xi) below, do not exceed the greater of (a) $500
million at any one time outstanding less the aggregate amount of all proceeds of
all Asset Dispositions that have been applied since the Issue Date to
permanently reduce the outstanding amount of such Indebtedness and (b) the
amount of the Borrowing Base as of such date (calculated on a pro forma basis
after giving effect to such borrowing and the application of the proceeds
therefrom); (iii) outstanding or incurred on the Issue Date; (iv) evidenced by
trade letters of credit incurred in the ordinary course of business not to
exceed $20 million in the aggregate at any time; (v) between or among the
Company and/or its Restricted Subsidiaries other than Restricted Subsidiaries
owned in any part by the Principal Shareholders; (vi) which is Subordinated
Debt; (vii) arising out of Sale and Leaseback Transactions or Capitalized Lease
Obligations relating to computers and other office equipment and elements,
catalysts or other chemicals used in connection with the refining of petroleum
or petroleum by-products; (viii) the proceeds of which are used to make the
Chevron Payment, the AOC Payment and the Gulf Payments; (ix) arising out of
Interest Swap Obligations; (x) in connection with capital projects qualifying
under Section 142(a) (or any successor provision) of the Internal Revenue Code
of 1986, as amended, in an amount not to exceed $75 million in the aggregate at
any time; (xi) obligations of the Company or any Restricted Subsidiary in
connection with any Qualified Securitization Transaction in an amount which,
together with any amount under clause (ii) above, does not exceed the greater of
(a) $500 million at any one time outstanding less the aggregate amount of all
proceeds of all Asset Dispositions that have been applied since the Issue Date
to permanently reduce the outstanding amount of such Indebtedness and (b) the
amount of the Borrowing Base as of such date (calculated on a pro forma basis
after giving effect to such borrowing and the application of the
15
proceeds therefrom); (xii) any guarantee by the Company of Indebtedness of any
of its Restricted Subsidiaries so long as the incurrence of such Indebtedness is
permitted to be incurred under Section 9.12; (xiii) Indebtedness or preferred
stock of Persons that are acquired by the Company or any of its Restricted
Subsidiaries or merged into the Company or a Restricted Subsidiary in accordance
with the terms of this Indenture; provided that such Indebtedness or preferred
stock is not incurred in contemplation of such acquisition or merger; and
provided further that after giving effect to such acquisition or merger either
(A) the Company would be permitted to incur at least $1.00 of additional
Indebtedness under the Consolidated Operating Cash Flow Ratio test set forth in
Section 9.12 or (B) the Company's Consolidated Operating Cash Flow Ratio is
equal to or greater than such ratio immediately prior to such acquisition or
merger; (xiv) in an amount not greater than twice the aggregate amount of cash
contributions made to the capital of the Company; (xv) in exchange for, or the
proceeds of which are used to refund or refinance the 10 7/8% Notes; provided,
however, that after giving effect to such exchange, refunding or refinancing,
the Consolidating Operating Cash Flow Ratio exceeds 1.75 to 1.0 and such
Indebtedness shall be subordinated to the Securities to at least the same extent
as the Senior Subordinated Notes are subordinated to the Securities; and (xvi)
in addition to Indebtedness permitted by clauses (i) through (xv) above,
Indebtedness not to exceed on a consolidated basis for the Company and its
Restricted Subsidiaries at any time $75 million.
"Permitted Liens" means (i) Liens in favor of the Company; (ii) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with the Company, provided that such Liens were in existence prior
to the contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company; (iii) Liens on property existing at the time of acquisition thereof by
the Company, provided that such Liens were in existence prior to the
contemplation of such acquisition; (iv) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (v)
Liens existing on the Issue Date; (vi) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(vii) Liens imposed by law, such as mechanics', carriers', warehousemen's,
materialmen's, and vendors' Liens, incurred in good faith in the ordinary course
of business with respect to amounts not yet delinquent or being contested in
good faith by appropriate proceedings if a reserve or other appropriate
provisions, if any, as shall be required by GAAP shall have been made therefor;
(viii) zoning restrictions, easements, licenses, covenants, reservations,
restrictions on the use of real property or minor irregularities of title
incident thereto that do not, in the aggregate, materially detract from the
value of the property or the assets of the Company or impair the use of such
property in the operation of the Company's business; (ix) judgment Liens to the
extent that such judgments do not cause or constitute a Default or an Event of
Default; (x) Liens to secure the payment of all or a part of the purchase price
of property or assets acquired or the construction costs of property or assets
constructed in the ordinary course of business on or after the Issue Date,
provided that (a) such property or assets are used in the Principal Business of
the Company, (b) at the time of incurrence of any such Lien, the aggregate
principal amount of the obligations secured by such Lien shall not exceed the
lesser of the cost or fair market value of the assets or property (or portions
thereof) so acquired or constructed, (c) each such Lien shall
16
encumber only the assets or property (or portions thereof) so acquired or
constructed and shall attach to such assets or property within 180 days of the
purchase or construction thereof and (d) any Indebtedness secured by such Lien
shall have been permitted to be incurred under the covenant set forth in Section
9.12; (xi) Liens incurred in the ordinary course of business of the Company with
respect to obligations that do not exceed 5% of Consolidated Net Tangible Assets
at any one time outstanding; (xii) Liens incurred in connection with Interest
Swap Obligations; (xiii) Liens on any Securitization Program Assets in
connection with any Qualified Securitization Transaction; and (xiv) Liens to
secure obligations owing from time to time under the Credit Agreement and
Guaranties thereof.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, estate, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" has the meaning specified in the third paragraph of Exhibit
A attached hereto.
"Port Xxxxxx Refinery" means the refinery in Port Xxxxxx, Texas and certain
other assets acquired from Chevron U.S.A., Inc.
"Preferred Stock" means any share of Capital Stock of any Person in respect of
which the holder thereof is entitled to receive payment before any other payment
is made with respect to any other Capital Stock of such Person.
"Preferred Stock Dividends" means, with respect to any Person for any period,
the amount of regularly scheduled dividends accrued, accruable, paid or payable
during such period, whether in cash or otherwise, with respect to any Preferred
Stock of such Person.
"Principal Business" means, with respect to the Company and its Restricted
Subsidiaries, (i) the business of the acquisition, processing, marketing,
refining, storage and/or transportation of hydrocarbons and/or royalty or other
interests in crude oil or associated products related thereto, (ii) the
acquisition, operation, improvement, leasing and other use of convenience
stores, retail service stations, truck stops and other public accommodations in
connection therewith, (iii) any business currently engaged in by the Company or
its Restricted Subsidiaries on the Issue Date, and (iv) any activity or business
that is a reasonable extension, development or expansion of, or reasonably
related to, any of the foregoing.
"Principal Property" means (i) any refinery and related pipelines,
terminalling and processing equipment or (ii) any other real property or
marketing assets or related group of such assets of the Company having a fair
market value in excess of $20 million.
"Principal Shareholders" means (i) Blackstone, (ii) Occidental Petroleum
Corporation, (iii) Gulf Resources Corporation and (iv) Affiliates of the Persons
described in the foregoing clauses (i) through (iii), other than the Company and
its Subsidiaries.
17
"Private Placement Legend" means the legend set forth in Section 2.06(g)(i) to
be placed on all Initial Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Purchase Date" has the meaning as specified in Section 10.09.
"Qualified Securitization Transaction" means any transaction or series of
transactions that may be entered into by the Company or any Subsidiary pursuant
to which the Company or any Subsidiary may sell, convey, grant a security
interest in or otherwise transfer to a Securitization Special Purpose Entity,
and such Securitization Special Purpose Entity may sell, convey, grant a
security interest in, or otherwise transfer to any other Person, any
Securitization Program Assets (whether now existing or arising in the future).
"Quarter" means a fiscal quarterly period of the Company.
"Rating Agencies" means (i) S&P and Moody's or (ii) if S&P or Moody's or both
of them are not making ratings of the Notes publicly available, a nationally
recognized U.S. rating agency or agencies, as the case may be, selected by the
Company, which will be substituted for S&P or Moody's or both, as the case may
be.
"Rating Category" means (i) with respect to S&P, any of the following
categories (any of which may include a "+" or "-"); AAA, AA, A, BBB, BB, B, CCC,
CC, C and D (or equivalent successor categories); (ii) with respect to Moody's,
any of the following categories (any of which may include a "1," "2" or "3");
Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories),
and (iii) the equivalent of any such categories of S&P or Moody's used by
another Rating Agency, if applicable.
"Rating Decline" means that at any time within 90 days (which period shall be
extended so long as the rating of the Notes is under publicly announced
consideration for possible down grade by any Rating Agency) after the date of
public notice of a Change of Control, or of the intention of the Company or of
any Person to effect a Change of Control, the rating of the Notes is decreased
by both Rating Agencies by one or more categories and the ratings on the Notes
following such downgrade is below Investment Grade.
"Receivables" means all rights of the Company or any Subsidiary of the Company
to payments (whether constituting accounts, chattel paper, instruments, general
intangibles or otherwise, and including the right to payment of any interest or
finance charges), which rights are identified in the accounting records of the
Company or such Subsidiary as accounts receivable.
"Redemption Date," when used with respect to any Note to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed, means
the price at which it is to be redeemed pursuant to this Indenture.
18
"Registration Rights Agreement" means the Exchange and Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Permanent Global Note" means a permanent global Security in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depository or its nominee, and issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period and authenticated as provided in Section
2.02 hereof.
"Regulation S Temporary Global Note" means a temporary global Security in the
form of Exhibit A-1 hereto bearing the Private Placement Legend and deposited
with or on behalf of and registered in the name of the Depository or its
nominee, issued in a denomination equal to the outstanding principal amount of
the Notes initially sold in reliance on Rule 903 of Regulation S.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the May 1 or November 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"Responsible Officer" shall mean when used with respect to the Trustee, any
officer within the Corporate Trust Office including any Vice President, Managing
Director, Assistant Vice President, Secretary, Assistant Secretary or Assistant
Treasurer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge and familiarity with the particular
subject.
"Restricted Debt Prepayment" means any purchase, redemption, defeasance
(including, but not limited to, in-substance or legal defeasance) or other
acquisition or retirement for value (collectively a "prepayment") other than in
connection with a concurrent issuance of pari passu or Subordinated
Indebtedness, directly or indirectly, by the Company or a Restricted Subsidiary
of the Company, prior to the scheduled maturity on or prior to any scheduled
repayment of principal (and premium, if any) or sinking fund payment in respect
of Indebtedness of the Company (other than the Notes) which is subordinate in
right of payment to the Notes.
"Restricted Definitive Security" means a Definitive Security bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Security bearing the Private Placement
Legend.
"Restricted Investment" means any direct or indirect Investment by the Company
or any Restricted Subsidiary of the Company in (i) any Affiliate of the Company
which is not a
19
Restricted Subsidiary of the Company and (ii) any Unrestricted Subsidiary of the
Company, other than direct or indirect investments in (a) Polymer Asphalt
L.L.C., a Missouri limited liability company (b) Bagel Street Holdings, Inc. and
(c) any pipeline company in which the Company or any of its Restricted
Subsidiaries now owns or hereafter acquires any interest; provided that the
aggregate amount of Investments made by the Company or any of its Restricted
Subsidiaries pursuant to clauses (a), (b) and (c) above shall not exceed $25
million in the aggregate at any one time outstanding provided, that no
Investment in a Securitization Special Purpose Entity in connection with a
Qualified Securitization Transaction shall be a Restricted Investment.
"Restricted Payment" means (i) any Stock Payment, (ii) any Restricted
Investment, or (iii) any Restricted Debt Prepayment. Notwithstanding the
foregoing, Restricted Payments shall not include (a) payments by the Company to
any Restricted Subsidiary of the Company, (b) payments by any Restricted
Subsidiary of the Company to the Company or any other Restricted Subsidiary of
the Company, (c) the Chevron Payment, (d) the AOC Payment and (e) the Gulf
Payments.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not (i) an Unrestricted Subsidiary or (ii) a direct or indirect
Subsidiary of an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Rating Services and its successors.
"Sale and Leaseback Transaction" of any Person means an arrangement with any
lender or investor or to which such lender or investor is a party providing for
the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than 365 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Securities" has the meaning stated in the first recital of this Indenture and
more particularly means any Securities authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Program Assets" means (a) all Receivables and inventory which
are described as being transferred by the Company or any Subsidiary of the
Company pursuant to documents relating to any Qualified Securitization
Transaction, (b) all Securitization Related Assets, and (c) all collections
(including recoveries) and other proceeds of the assets described in the
foregoing clauses.
"Securitization Related Assets" means (i) any rights arising under the
documentation governing or relating to Receivables (including rights in respect
of Liens securing such
20
Receivables and other credit support in respect of such Receivables) or to
inventory, (ii) any proceeds of such Receivables or inventory and any lockboxes
or accounts in which such proceeds are deposited, (iii) spread accounts and
other similar accounts (and any amounts on deposit therein) established in
connection with a Qualified Securitization Transaction, (iv) any warranty,
indemnity, dilution and other intercompany claim arising out of the documents
relating to such Qualified Securitization Transaction and (v) other assets which
are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable or inventory.
"Securitization Special Purpose Entity" means a Person (including, without
limitation, a Subsidiary of the Company) created in connection with the
transactions contemplated by a Qualified Securitization Transaction, which
Person engages in no activities other than those incidental to such Qualified
Securitization Transaction.
"Security Custodian" means the Trustee, as custodian with respect to the
Global Securities, or any successor entity thereto.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 2.03.
"Shareholder/Affiliate Transaction" has the meaning as specified in Section
9.11.
"Special Interest" has the meaning as specified in the first paragraph of
Exhibit A attached hereto.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Company with the consent of the Trustee pursuant to the third
paragraph of Exhibit A attached hereto.
"Stated Maturity" means November 15, 2007.
"Stock Payment" means, with respect to the Company, any dividend, either in
cash or in property (except dividends payable in Capital Stock of the Company
which is not convertible into Indebtedness), on, or the making by the Company of
any other distribution in respect of, its Capital Stock, now or hereafter
outstanding, or the redemption, repurchase, retirement, defeasance or any
acquisition for value by the Company, directly or indirectly, of its Capital
Stock or any warrants, rights or options to purchase or acquire shares of any
class of its Capital Stock, now or hereafter outstanding (other than in exchange
for the Company's Capital Stock (other than Disqualified Capital Stock) or
options, warrants or other rights to purchase the Company's Capital Stock (other
than Disqualified Capital Stock)).
"Stock Purchase and Redemption Agreement" means that certain Stock Purchase
and Redemption Agreement dated as of December 30, 1992, by and among AOC Limited
Partnership, P. Xxxxxxx Xxxxxxx, Xxxxxx X. Xxxxxxxxx, G&N Investments, Inc., The
Horsham Corporation, the Company and Xxxxx USA.
21
"Subordinated Indebtedness" means, with respect to the Notes, any Indebtedness
of the Company which is subordinated in right of payment to the Notes and with
respect to which no payments of principal (by way of sinking fund, mandatory
redemption, maturity or otherwise), including, without limitation, at the option
of the holder thereof (other than pursuant to an offer to repurchase such
Subordinated Indebtedness following a change of control, which offer may not be
completed until 45 days after completion of the Offer described in Section
12.01) are required to be made by the Company at any time prior to the Stated
Maturity of such Notes.
"Subsidiary" of any Person means (i) a corporation more than 50% of the total
voting power of all classes of the outstanding voting stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and the power to direct the policies, management and affairs thereof.
"Surviving Person" means, with respect to any Person involved in or that makes
any Disposition, the Person formed by or surviving such Disposition or the
Person to which such Disposition is made.
"Transaction Date" means the date on which the Indebtedness giving rise to the
need to calculate the Consolidated Operating Cash Flow Ratio was incurred or the
date on which, pursuant to the terms of this Indenture, the transaction giving
rise to the need to calculate the Consolidated Operating Cash Flow Ratio
occurred.
"Transfer Restricted Securities" means Securities that bear or are required to
bear the legend set forth in Section 2.06(g)(i) hereof.
"TrizecHahn" means the Trizec Xxxx Corporation.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the
Issue Date; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee
"Unrestricted Definitive Security" means one or more Definitive Securities
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent Global Security in the form of
Exhibit A attached hereto that bears the Global Note Legend and that has the
"Schedule of Exchanges of
22
Interests in the Global Note" attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depository, representing a series of
Securities that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Subsidiary" means any Subsidiary that is designated by the board
of directors of the Company as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a) has no Indebtedness
other than Non-Recourse Debt; (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary of
the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company; (c) is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Capital Stock (including options,
warrants or other rights to acquire Capital Stock) or (y) to maintain or
preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results; and (d) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
the Company or any of its Restricted Subsidiaries. The board of directors of the
Company may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that such designation shall be deemed to be an incurrence
of Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 9.12 hereof, and
(ii) no Default or Event of Default would be in existence following such
designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Vice President", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
"Wholly Owned U.S. Restricted Subsidiary" of any Person means a Wholly Owned
Restricted Subsidiary of such Person which is organized under the laws of any
state in the United States or of the District of Columbia.
Section 1.02. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion
23
shall be given in the form of an Officers' Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which such
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in
24
person or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and shall be conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 6.01)
prior to such first solicitation or vote, as the case may be. With regard to
any record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 1.05. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
25
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust and Agency Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited, in the mail with first-class postage prepaid; if
mailed; when receipt acknowledged, if sent by facsimile; and the next business
day after timely delivery to the courier, if sent by recognized overnight
courier guaranteeing next-day delivery; provided that notice to the Trustee
shall be deemed given only when received by the Trustee.
Section 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited, in the mail with first-class postage prepaid, if
mailed; when receipt acknowledged, if sent by facsimile; and the next business
day after timely delivery to the courier, if sent by recognized overnight
courier guaranteeing next-day delivery; provided that notice to the Trustee
shall be deemed given only when received by the Trustee.
Section 1.07. Conflict with Trust Indenture Act.
26
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act, the latter provision shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF).
Section 1.13. Legal Holidays.
In any case where any Redemption Date, Purchase Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of principal
(and premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Redemption Date, Purchase Date or at the Stated Maturity.
Section 1.14. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture for any claim based on, in respect of or
by reason of such obligations or their
27
creation. Each Holder by accepting a Security waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
ARTICLE 2
---------
THE SECURITIES
--------------
Section 2.01. Form and Dating.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A hereto. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication. The
Securities will be issued in registered form, without coupons and only in
denominations of $100,000 and integral multiples of $1,000.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Global Securities. Notes issued in global form shall be substantially
in the form of Exhibits A and A-1 attached hereto (including the Global Note
Legend thereon and the "Schedule of Exchanges of Interests in the Global
Securities" attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A or A-1 attached hereto (but without the
Global Note Legend thereon and without the "Schedule of Exchanges of Interests
in the Global Securities" attached thereto). Each Global Security shall
represent such of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Security to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Security Custodian, at the direction
of the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
Temporary Global Securities. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Note, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its New York office, as custodian for
the Depository, and registered in the name of the Depository or the nominee of
the Depository for the accounts of designated agents holding on behalf of
Euroclear or Cedel Bank, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Restricted Period shall terminate upon the
last to occur of (i) the 40th day of the Restricted Period and (ii) the receipt
by the Trustee of (a) copies of certificates from Euroclear and Cedel Bank
certifying that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners thereof who
acquired an interest therein during the Restricted Period pursuant to another
exemption from registration under the
28
Securities Act and who will take delivery of a beneficial ownership interest in
a 144A Global Note or an IAI Global Note bearing a Private Placement Legend, all
as contemplated by Section 2.06(a)(ii) hereof), and (b) an Officers' Certificate
from the Company stating that all conditions precedent to the issuance of the
Regulation S Permanent Global Note have been satisfied. Following the
termination of the Restricted Period, beneficial interests in the Regulation S
Temporary Global Note shall be exchanged for beneficial interests in Regulation
S Permanent Global Notes pursuant to the Applicable Procedures. Simultaneously
with the authentication of Regulation S Permanent Global Notes, the Trustee
shall cancel the Regulation S Temporary Global Note. The aggregate principal
amount of the Regulation S Temporary Global Note and the Regulation S Permanent
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depository or its nominee, as the case may
be, in connection with transfers of interest as hereinafter provided.
Euroclear and Cedel Procedures Applicable. The provisions of the "Operating
Procedures of the Euroclear System" and "Terms and Conditions Governing Use of
Euroclear" and the "General Terms and Conditions of Cedel Bank" and "Customer
Handbook" of Cedel Bank shall be applicable to transfers of beneficial interests
in the Regulation S Temporary Global Note and the Regulation S Permanent Global
Notes that are held by Participants through Euroclear or Cedel Bank.
Section 2.02. Execution and Authentication.
An Officer shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time a Security is authenticated, the Security shall nevertheless
be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate Securities for original issue up to the aggregate
principal amount stated in paragraph 1 of the Securities. The aggregate
principal amount of Securities outstanding at any time may not exceed such
amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Security Registrar")
and an office or
29
agency where Securities may be presented for payment ("Paying Agent"). The
Security Registrar shall keep a register of the Securities and of their transfer
and exchange (the "Security Register"). The Company may appoint one or more co-
security registrars and one or more additional paying agents. The term "Security
Registrar" includes any co-security registrar and the term "Paying Agent"
includes any additional paying agent. The Company may change any Paying Agent or
Security Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Security Registrar or Paying Agent, the Trustee shall act as such. The Company
or any of its Subsidiaries may act as Paying Agent or Security Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depository with respect to the Global Securities.
The Company initially appoints the Trustee to act as the Security
Registrar and Paying Agent and to act as Security Custodian with respect to the
Global Securities.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Securities, and will notify the
Trustee in writing of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Securities.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Security Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of
Securities and the Company shall otherwise comply with TIA (S) 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. A Global Security
may not be transferred as a whole except by the Dep ository to a nominee of the
Depository, by a nominee of the Depository to the Depository or to another
nominee of the Depository, the Depository or any such nominee to a successor
Depository or a nominee of such successor
30
Depository. All Global Notes (except the Regulation S Temporary Global Note)
will be exchanged by the Company for Definitive Securities if (i) the Company
delivers to the Trustee written notice from the Depository that it is unwilling
or unable to continue to act as Depository or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depository is not appointed by the Company within 120 days after the date of
such notice from the Depository or (ii) the Company in its sole discretion
determines that the Global Securities (in whole but not in part) should be
exchanged for Definitive Securities and delivers a written notice to such effect
to the Trustee. Upon the occurrence of either of the preceding events in (i) or
(ii) above, Definitive Securities shall be issued in such names as the
Depository shall instruct the Trustee. Global Securities also may be exchanged
or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Security or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or 2.10 hereof, shall be authenticated and delivered in the form of, and shall
be, a Global Security. A Global Security may not be exchanged for another Note
other than as provided in this Section 2.06(a), however, beneficial interests in
a Global Security may be transferred and exchanged as provided in Section
2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Securities. The transfer and exchange of beneficial interests in the Global
Securities shall be effected through the Depository, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Security.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that transfers of beneficial interests in the Regulation S Temporary Global
Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note. No written orders or instructions shall be required to be delivered
to the Security Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Securities. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above, the
transferor of such beneficial interest must deliver to the Security
Registrar either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depository in accordance with the Applicable
Procedures directing the Depository to credit or cause to be credited a
beneficial interest in another Global Security in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures
31
containing information regarding the Participant account to be credited
with such increase or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depository in accordance with the
Applicable Procedures directing the Depository to cause to be issued a
Definitive Security in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depository to
the Security Registrar containing information regarding the Person in whose
name such Definitive Security shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall
Definitive Securities be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Security
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Security Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Securities contained
in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Securities pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Security Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the Regulation
S Permanent Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications and
certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted Global
Note. A beneficial interest in any Restricted Global Note may be exchanged
by any holder thereof for a beneficial interest in an Unrestricted Global
Note or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
32
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in
the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement as defined in and in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in item
(1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D),
if the Security Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Security Registrar and the
Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an authentication order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
33
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Securities.
(v) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Securities. If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Security or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive
Security, then, upon receipt by the Security Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Security, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule
904 under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
34
the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the
instructions a Definitive Security in the appropriate principal
amount. Any Definitive Security issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Security Registrar through instructions
from the Depository and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Securities to the Persons in
whose names such Notes are so registered. Any Definitive Security
issued in exchange for a beneficial interest in a Restricted Global
Note pursuant to this Section 2.06(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer
contained therein.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial
interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Security or transferred to a Person who
takes delivery thereof in the form of a Definitive Security.
(vi) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Securities. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Security or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Security only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person participating in
the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement as defined in and in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement as defined in and
in accordance with the Registration Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Definitive
35
Security that does not bear the Private Placement Legend, a certificate from
such holder in the form of Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a Definitive Security that does
not bear the Private Placement Legend, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Security
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Security Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(vii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Securities. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Security or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Security, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount
of the applicable Global Security to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive
Security issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Security Registrar through instructions from
the Depository and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Securities to the Persons in whose names such
Notes are so registered. Any Definitive Security issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear
the Private Placement Legend.
(d) Transfer and Exchange of Definitive Securities for Beneficial
Interests.
(viii) Restricted Definitive Securities to Beneficial Interests
in Restricted Global Notes. If any Holder of a Restricted Definitive
Securities proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Securities
to a Person who takes delivery thereof in the form of a beneficial interest
in a Restricted Global Note, then, upon receipt by the Security Registrar
of the following documentation:
(A) if the Holder of such Restricted Definitive Security
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note, a
36
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Security is being
transferred to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Security is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Security is being
transferred pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Security is being
transferred to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than those listed
in subparagraphs (B) through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Security is being
transferred to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Security is being
transferred pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Security,
increase or cause to be increased the aggregate principal amount
of, in the case of clause (A) above, the appropriate Restricted
Global Note, in the case of clause (B) above, the 144A Global
Note, in the case of clause (C) above, the Regulation S Permanent
Global Note, and in all other cases, the IAI Global Note.
(ix) Restricted Definitive Securities to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Securities
may exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Securities to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
37
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the Holder of such Definitive Securities proposes to
exchange such Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Securities proposes to
transfer such Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D),
if the Security Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Security Registrar to the
effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee shall
cancel the Definitive Securities and increase or cause to be
increased the aggregate principal amount of the Unrestricted
Global Note.
(x) Unrestricted Definitive Securities to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Security
may exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Definitive Securities to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer,
the Trustee shall cancel the applicable Unrestricted
38
Definitive Security and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Security to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Securities so transferred.
(a) Transfer and Exchange of Definitive Securities for Definitive
Securities.
Upon request by a Holder of Definitive Securities and such Holder's
compliance with the provisions of this Section 2.06(e), the Security Registrar
shall register the transfer or exchange of Definitive Securities. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Security Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Security Registrar duly executed by such Holder or by his attorney, duly
authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.06(e).
(i) Restricted Definitive Securities to Restricted Definitive
Securities. Any Restricted Definitive Security may be transferred to and
registered in the name of Persons who take delivery thereof in the form of
a Restricted Definitive Security if the Security Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 904, then
the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including
the certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Security to Unrestricted Definitive
Securities. Any Restricted Definitive Security may be exchanged by the
Holder thereof for an Unrestricted Definitive Security or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating
39
in the distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the Holder of such Restricted Definitive Securities
proposes to exchange such Notes for an Unrestricted Definitive Security, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Securities
proposes to transfer such Notes to a Person who shall take delivery thereof in
the form of an Unrestricted Definitive Security, a certificate from such Holder
in the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D),
if the Security Registrar so requests, an Opinion of Counsel
in form reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the
Securities Act.
(iii) Unrestricted Definitive Securities to Unrestricted
Definitive Securities. A Holder of Unrestricted Definitive Securities may
transfer such Notes to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Security. Upon receipt of a request to register
such a transfer, the Security Registrar shall register the Unrestricted
Definitive Securities pursuant to the instructions from the Holder thereof.
(b) Exchange Offer. Upon the consummation of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an authentication order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not broker-
dealers, (y) they are not participating in a distribution of the Exchange Notes
and (z) they are not affiliates (as defined in Rule 144) of the Company, and
accepted for exchange in the Exchange Offer and (ii) Definitive Securities in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Securities accepted for exchange in the Exchange Offer. Concurrently
with the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the
40
applicable Restricted Global Notes to be reduced accordingly, and the Company
shall execute and the Trustee shall authenticate and deliver to the Persons
designated by the Holders of Definitive Securities so accepted Definitive
Securities in the appropriate principal amount.
(c) Legends. The following legends shall appear on the face of all
Global Securities and Definitive Securities issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Security and each Definitive Security (and all Notes issued in exchange therefor
or substitution thereof) shall bear the legend in substantially the following
form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT
IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT
OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), (2) AGREES
THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k)
(TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES
ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF
THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE
HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
(E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE REGISTRATION OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO
41
WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE
OR ANY INTEREST HEREIN WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE.
EACH IAI THAT IS NOT A QIB WILL BE REQUIRED TO EFFECT ANY TRANSFER OF NOTES
OR INTERESTS THEREIN (OTHER THAN PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT) THROUGH ONE OF THE INITIAL PURCHASERS. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(B) Notwithstanding the foregoing, any Global Security or
Definitive Security issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii),
(d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes
issued in exchange therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Note Legend. Each Global Security shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note shall bear a legend in substantially the
following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR BENEFICIAL INTERESTS
IN THE REGULATION S PERMANENT GLOBAL NOTE, ARE AS SPECIFIED IN THE
INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS
42
OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON."
(d) Cancellation and/or Adjustment of Global Security. At such time
as all beneficial interests in a particular Global Security have been exchanged
for Definitive Securities or a particular Global Security has been redeemed,
repurchased or canceled in whole and not in part, each such Global Security
shall be returned to or retained and canceled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Security or for Definitive Securities, the principal amount of Notes
represented by such Global Security shall be reduced accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depository at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(e) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Securities
and Definitive Securities upon the Company's order or at the Security
Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Security or to a Holder of a Definitive Security for
any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 8.06, 9.16, 10.08 and 10.09 hereof).
(iii) The Security Registrar shall not be required to register
the transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Securities and Definitive Securities issued upon
any registration of transfer or exchange of Global Securities or Definitive
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Definitive Securities surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 10.04 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (c) to register the transfer
43
of or to exchange a Note between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, the Security Registrar, any Paying Agent,
Authenticating Agent and the Company may deem and treat the Person in whose
name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Notes and
for all other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Securities and
Definitive Securities in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Security Registrar pursuant to this Section
2.06 to effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate a replacement Security if the Trustee's requirements
are met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Paying Agent, the Security
Registrar and any Authenticating Agent from any loss that any of them may suffer
if a Security is replaced. The Company may charge for its expenses in replacing
a Security.
Every replacement Security is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
Section 2.08. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
44
If the principal amount of any Security is considered paid under
Section 9.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Securities payable on that date, then on and after that date
such Securities shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded.
Section 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a written
order of the Company signed by two Officers of the Company. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities and
as shall be reasonably acceptable to the Trustee. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities.
Holders of temporary Securities shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Security Registrar and Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall dispose of such Securities in accordance with the
Trustee's normal procedures as in effect from time to time. Certification of the
destruction of all canceled Securities shall be delivered to the Company. The
Company may not issue new Securities to replace Securities that it has paid or
that have been delivered to the Trustee for cancellation.
45
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Securities and in Section 9.01 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Security and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date, provided that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
ARTICLE 3.
----------
SATISFACTION AND DISCHARGE
--------------------------
Section 3.01. Satisfaction and Discharge of Indenture.
This Indenture shall, upon the request of the Company, cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.07 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 9.03) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust funds
in trust for such purpose an amount
46
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with; and
(4) the Trustee shall have received such other documents and
assurances as the Trustee shall have reasonably requested.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 5.07, the obligations of
the Trustee to any Authenticating Agent under Section 5.15 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 3.02 and the last
paragraph of Section 9.03 shall survive.
Section 3.02. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 9.03, all money
deposited with the Trustee pursuant to Section 3.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE 4.
----------
REMEDIES
--------
Section 4.01. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
47
(3) failure by the Company to observe or perform any covenant,
condition on the part of the Company to be performed or observed pursuant
to Section 7.01 hereof; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any
Restricted Subsidiary of the Company (or the payment of which is guaranteed
by the Company or a Restricted Subsidiary of the Company) , whether such
Indebtedness or guarantee now exists or shall be created hereafter, if (a)
either (i) such default results from the failure to pay principal (and
premium, if any) upon the expressed maturity of such Indebtedness (after
the expiration of any applicable grace period) or (ii) as a result of such
default the maturity of such Indebtedness has been accelerated prior to its
expressed maturity and (b) the principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness with
respect to which the principal amount unpaid upon its expressed maturity
(after the expiration of any applicable grace period), or the maturity of
which has been so accelerated, exceeds $25 million; or
(6) a final judgment or final judgments (not subject to appeal) for
the payment of money are entered by a court or courts of competent
jurisdiction against the Company or any Subsidiary of the Company and such
judgment or judgments remain unstayed, in effect and unpaid for a period of
60 consecutive days, provided that the aggregate of all such judgments (to
the extent not paid or to be paid by insurance) exceeds $50 million; or
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Subsidiary of
the Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Subsidiary of the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Subsidiary of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or any Subsidiary of the Company or of any substantial part of
the property of the Company or any Subsidiary of the Company, or ordering
the winding up or liquidation of the affairs of the Company or any
Subsidiary of the Company, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
48
(8) the commencement by the Company or any Subsidiary of the Company
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company or any Subsidiary of the Company to the entry of a
decree or order for relief in respect of the Company or any Subsidiary of
the Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or any Subsidiary of the Company, or the
filing by the Company or any Subsidiary of the Company of a petition or
answer or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by the Company or any Subsidiary of
the Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Subsidiary of
the Company or of any substantial part of their respective property, or the
making by the Company or any Subsidiary of the Company of an assignment for
the benefit of creditors, or the admission by either the Company or any
Subsidiary of the Company in writing of an inability to pay debts generally
as they become due, or the taking of corporate action by the Company or any
Subsidiary of the Company in furtherance of any such action.
Section 4.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default specified in
clause 4.01(7) or (8)) with respect to the Securities at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities may declare
all of the Securities to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration the Notes shall become immediately due and payable.
In the event of a declaration of acceleration because an Event of
Default specified in Section 4.01(5) has occurred and is continuing, such
declaration of acceleration shall be automatically annulled if the holders of
the Indebtedness which is the subject of such Event of Default have rescinded
their declaration of acceleration in respect of such Indebtedness within 90-days
thereof and the Trustee has received written notice of such cure, waiver or
rescission and no other Event of Default has occurred during such 90-day period
which has not been cured or waived. If an Event of Default specified in clauses
(7) or (8) of Section 4.01 occurs, the Securities then outstanding shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
49
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest, including Special Interest, on all
Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of acceleration
(including any Securities required to have been purchased on the Purchase
Date pursuant to an Offer to purchase made by the Company) and any interest
thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest, including Special Interest, and principal
(and premium, if any) at a rate of 8 3/8% per annum, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to the Securities, other than
the non-payment of the principal of Securities which have become due solely
by such declaration of acceleration, have been cured or waived as provided
in Section 4.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 4.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been purchased pursuant to an Offer to purchase
made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
50
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
If an Event of Default with respect to the Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 4.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same in accordance with Section 4.06 hereof; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 5.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 4.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 4.06. Application of Money Collected.
51
Any money or other property collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money or other property on
account of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
5.07; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and
interest, respectively.
Section 4.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Securities;
it being understood and intended that not one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 4.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
52
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 2.12) interest on such Security on the respective Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date or in the case of an Offer to Purchase made by the Company and
required to be accepted as to such Security, on the Purchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 4.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 4.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 2.07, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 4.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Subject to Section 4.07, every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 4.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities,
provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
53
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee shall have the right to decline to follow such
direction if a Responsible Officer or Officers of the Trustee shall, in
good faith, determine that the proceeding so directed would involve the
Trustee in personal liability from which it has not been adequately
indemnified.
Section 4.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities, upon written notice to the Trustee and the Company, may
on behalf of the Holders of all the Securities waive any past default hereunder
with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to purchase which has been made by the
Company), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 4.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Trustee or Holders of more than
10% in aggregate principal amount of the outstanding Notes.
Section 4.15. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede pursuant to any such law
the
54
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE 5.
----------
THE TRUSTEE
-----------
Section 5.01. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act provided, however, that if an Event of Default occurs,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 5.01.
Section 5.02. Notice of Defaults.
If a default occurs hereunder with respect to the Securities, the
Trustee shall give the Holders notice of such default as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
default of the character specified in Section 4.01(4), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 5.03. Certain Rights of Trustee.
Subject to the provisions of Section 5.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed)
55
may, in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its sole discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians and nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder.
(h) the rights and protections afforded to the Trustee under this
Section 5.03 shall be afforded to the Paying Agent, Security Registrar and
Authenticating Agent if the Trustee is acting in such capacity.
Section 5.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company, of Securities or the proceeds thereof.
Section 5.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
5.07 and 5.13, may otherwise deal with the
56
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent, as
the case may be.
Section 5.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 5.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel
and any other persons not regularly in its employ), except any such
expense, disbursement or advance as may be attributable to its gross
negligence or bad faith; and
(3) to indemnify the Trustee, its officers, directors, employees and
agents for, and to hold it harmless against, any and all loss, liability,
damage or expense including taxes (excluding income taxes of the
Trustee)incurred without gross negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of the
Indenture, the Securities, the issuance of any Securities or series of
Securities or the trust or trusts hereunder, including the costs and
expenses of any litigation, threatened or otherwise, in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section 5.07, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such.
The obligations of the Company under this Section 5.07 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the rejection or termination
of this Indenture under bankruptcy law. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities or coupons, and the Securities are hereby
subordinated to such senior claim. If the Trustee renders services and incurs
expenses following an Event of Default under Section 4.01(7) or Section 4.01(8)
hereof, the parties hereto and the Holders by their acceptance of the
57
Securities hereby agree that such expenses are intended to constitute expenses
of administration under any bankruptcy law.
Section 5.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. Further, it is
understood that the Trustee shall be entitled to any and all rights that the
Trustee may have in its individual capacity or any other capacity with respect
to any Indebtedness of the Company, and no provision of this Indenture shall be
construed as to limit or diminish any such right.
Section 5.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 5.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 5.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 5.11 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 5.08 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
58
(2) the Trustee shall cease to be eligible under Section 5.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 4.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees. If within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 5.11, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 5.11, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 1.06. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Section 5.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
including, without limitation, all monies due and owing to the retiring Trustee,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall
59
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 5.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 5.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 5.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
2.07, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such
60
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
61
This is one of the Securities described in the within-mentioned
Indenture.
Bankers Trust Company
As Trustee
By:
--------------------------------------
As Authenticating Agent
By:
--------------------------------------
Authorized Officer
62
ARTICLE 6.
----------
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
-------------------------------------------------
Section 6.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee at
any time, and from time to time as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of the names
and addresses of the Holders as of a date not more than 15 days prior to the
time such list is furnished.
Section 6.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 6.01. The Trustee may
destroy any list furnished to it as provided in Section 6.01 upon receipt of a
new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 6.03. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee in writing when any Securities are listed on any stock
exchange.
Section 6.04. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to the Trust Indenture Act; provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
63
ARTICLE 7.
----------
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
----------------------------------------------------
Section 7.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate or merge with or into (whether or
not the Company is the Surviving Person), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to another Person unless:
(a) the Surviving Person is a corporation organized and existing under
the laws of the United States, any state thereof or the District of
Columbia;
(b) the Surviving Person (if other than the Company) assumes by
supplemental indenture in a form reasonably satisfactory to the Trustee all
the obligations of the Company under the Securities and this Indenture;
(c) at the time of and immediately after such transaction no Default
or Event of Default shall have occurred and be continuing;
(d) except with respect to a merger of the Company with or into Xxxxx
USA that does not result in a Rating Decline, after giving pro forma effect
to the transaction either (1) the Surviving Person would be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Operating Cash Flow Ratio test set forth in Section 9.12
hereof or (2) the Consolidated Operating Cash Flow Ratio of the Surviving
Person would be no less than such ratio for the Company immediately prior
to the transaction; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 7.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer, lease or other disposition
of the properties and assets of the Company substantially as an entirety in
accordance with Section 7.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer, lease
or other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities; provided, however, that the predecessor Company shall not be
relieved from the obligation to pay principal of and interest on the Securities,
except in the
64
case of a transfer, conveyance, sale or other disposition (excluding by lease)
of all of the Company's assets that meets the requirements of Section 7.01
hereof.
ARTICLE 8.
----------
SUPPLEMENTAL INDENTURES
-----------------------
Section 8.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to secure the Securities; or
(5) to establish the form or terms of Securities as permitted by
Section 2.01; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (7)
shall not adversely affect the interests of the Holders in any material
respect; or
(8) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
Section 8.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the
65
rights of the Holders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or
(2) reduce the principal amount of (or the premium), or interest,
including Special Interest, on, any Securities, or
(3) change the place or currency of payment of principal of (or
premium), or interest on, any Securities, or
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any Securities, or
(5) reduce the above-stated percentage of Outstanding Securities
necessary to modify or amend the Indenture, or
(6) reduce the percentage of aggregate principal amount of Outstanding
Securities necessary for waiver of compliance of certain covenants, as set
forth in Article 4.13 or 9.19 hereof, or
(7) modify any provisions of this Indenture relating to the
modification and amendment of this Indenture or the waiver of past defaults
or covenants, except as otherwise specified herein.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 8.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 8.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
66
Section 8.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 8.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
Section 8.07. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 8.02, the Company
shall give notice to all Holders of such fact, setting forth in general terms
the substance of such supplemental indenture, in the manner provided in Section
1.06. Any failure of the Company to give such notice, or any defect therein,
shall not in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE 9.
----------
COVENANTS
---------
Section 9.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it shall duly and punctually pay
the principal of (and premium, if any) and interest, including Special Interest,
on the Securities in accordance with the terms of the Securities and this
Indenture.
Section 9.02. Maintenance of Office or Agency.
The Company shall maintain an office or agency in the Borough of
Manhattan, City of New York where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company initially appoints
Bankers Trust Company as Paying Agent and Security Registrar. The Company shall
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company terminates the
appointment of a Paying Agent or Security Registrar or otherwise shall fail to
maintain any such required office or agency, the Company shall use its
reasonable best efforts to appoint a successor Paying Agent or Security
Registrar reasonably acceptable to the Trustee. If the Company fails to maintain
a Paying Agent or Security Registrar, the Trustee shall act as such, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and
67
demands. The Company shall forward copies of all presentations, surrenders,
notices and demands to the Trustee promptly upon their receipt.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, City of New York, for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
Section 9.03. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
shall, on or prior to 11:00 a.m. New York City time on each due date of the
principal of or any premium or interest on any of the Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and any premium and interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or any premium or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest, including Special Interest, on any Security and remaining unclaimed
for two years after such principal, premium or interest, including Special
Interest, has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
68
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 9.04. Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such officer signing such certificate, that to the best of
such officer's knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which such officer may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of such officers' knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of (and
premium, if any) or interest, including Special Interest, if any, on the
Securities are prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect
thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the financial statements
delivered pursuant to Section 9.08 shall be accompanied by a written statement
of the Company's independent public accountants (who shall be a firm of
established national reputation reasonably satisfactory to the Trustee) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of Articles Eight or Ten of this Indenture
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any
such violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any officer becoming aware
of (i) any default or Event of Default or (ii) any event of default under any
other mortgage, indenture or instrument as described in Section 4.01(5), an
Officers' Certificate specifying such default, Event of Default or event of
default and what action the Company is taking or proposes to take with respect
thereto.
69
Section 9.05. Existence.
Subject to Article 7, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 9.06. Maintenance of Properties.
The Company shall cause all properties used or useful in the conduct
of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary of the Company and not
disadvantageous in any material respect to the Holders.
Section 9.07. Payment of Taxes and Other Claims.
The Company shall, or shall cause its Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary of the Company or upon the income,
profits or property of the Company or any Subsidiary of the Company, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary of the Company;
provided, however, that the Company and its Subsidiaries shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Section 9.08. Provision of Financial Information.
So long as the Notes are outstanding, whether or not the Company is
required to be subject to Section 13(a) or 15(d) of the Exchange Act, or any
successor provision thereto, the Company shall file with the Commission the
annual reports, quarterly reports and other documents (including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by the Company's
certified independent accountants) which the Company would have been required to
file with the Commission pursuant to such Section 13(a) or 15(d) or any
successor provision thereto if the Company were so required, such documents to
be filed with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to file such
documents if the Company were so required. The Company shall also in any event
(a) within 15 days of each Required Filing Date (i) transmit by mail to all
70
Holders, as their names and addresses appear in the Security Register, without
cost to such Holders, and (ii) file with the Trustee, in each case, copies of
the annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act or any successor provisions thereto if the Company
were required to be subject to such Sections and (b) if filing such documents by
the Company with the Commission is not permitted under the Exchange Act,
promptly upon written request supply copies of such documents to any prospective
Holder. In addition, the Company shall, for so long as any Securities remain
outstanding, furnish to all Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144(d)(4) under the Securities Act.
Section 9.09. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless (i)
at the time of and immediately after giving effect to the proposed Restricted
Payment, no Default or Event of Default shall have occurred and be continuing,
or would occur as a consequence thereof, (ii) either the Company would (a) at
the time of such Restricted Payment and after giving pro forma effect thereto,
have a Consolidated Adjusted Net Worth exceeding $200 million or (b) be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Operating Cash Flow Ratio test set forth in Section 9.12, and (iii)
at the time of and immediately after giving effect to the proposed Restricted
Payment (the value of any such payment if other than cash, as determined in good
faith by the board of directors of the Company and evidenced by a Board
Resolution), the aggregate amount of all Restricted Payments (including
Restricted Payments permitted by clauses (b), (j), (l) and (m) of the next
succeeding paragraph and excluding the other Restricted Payments permitted by
such paragraph) declared or made subsequent to the Issue Date shall not exceed
the sum of (a) 50% of the aggregate Consolidated Net Operating Income (or, if
such aggregate Consolidated Net Operating Income is a deficit, minus 100% of
such deficit) of the Company for the period (taken as one accounting period)
from the first day of the fiscal quarter that begins after the Issue Date to the
end of the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment plus
(b) 100% of the aggregate net proceeds, including cash and the fair market value
of property other than cash (as determined in good faith by the board of
directors of the Company and evidenced by a Board Resolution), received by the
Company since the Issue Date, from any Person other than a Subsidiary of the
Company as a result of the issuance of Capital Stock (other than any
Disqualified Capital Stock) of the Company including such Capital Stock issued
upon conversion of Indebtedness or upon exercise of warrants and any
contributions to the capital of the Company (other than Excluded Contributions)
received by the Company from any such Person plus (c) to the extent that any
Restricted Investment that was made after the Issue Date, is sold for cash or
otherwise liquidated or repaid for cash, the cash return of capital with respect
to such Restricted Investment (less the cost of disposition, if any). For
purposes of any calculation pursuant to the preceding sentence which is required
to be made within 60 days after the declaration of a dividend by the Company,
such dividend shall be deemed to be paid at the date of declaration.
71
The foregoing provisions of this covenant shall not be violated by
reason of (a) the payment of any dividends or distributions payable solely in
shares of the Company's Capital Stock (other than Disqualified Capital Stock) or
in options, warrants or other rights to acquire the Company's Capital Stock
(other than Disqualified Capital Stock), (b) the payment of any dividend within
60 days after the date of declaration thereof if, at such date of declaration,
such payment complied with the provisions described above, (c) the payment of
cash dividends or the making of loans or advances to Xxxxx USA after October 1,
2002, in an amount sufficient to enable Xxxxx USA to make cash payments of
interest or dividends required to be made in respect of the Exchangeable
Preferred Stock or the Exchange Debentures in accordance with the terms thereof
in effect on the date of this Indenture, (d) the payment of cash dividends or
the making of loans or advances in an amount sufficient to enable Xxxxx USA to
make payments required to be made in respect of the 10 7/8% Notes in accordance
with the terms thereof in effect on the date of this Indenture, (e) the
retirement of any shares of the Company's Capital Stock in exchange for, or out
of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of, other shares of its Capital Stock (other than
Disqualified Capital Stock) or options, warrants or other rights to purchase the
Company's Capital Stock (other than Disqualified Capital Stock) and the
declaration and payment of dividends on such new Capital Stock in an aggregate
amount no greater than the amount of dividends declarable and payable on such
retired Capital Stock immediately prior to such retirement, (f) the Chevron
Payment, (g) the AOC Payment, (h) the Gulf Payments, (i) other Restricted
Payments in an aggregate amount not to exceed $50 million, (j) the making of any
payment in redemption of Capital Stock of the Company or Xxxxx USA or options to
purchase such Capital Stock granted to officers or employees of the Company or
Xxxxx USA pursuant to any stock option, stock purchase or other stock plan
approved by the board of directors of the Company or Xxxxx USA in connection
with the severance or termination of officers or employees not to exceed $8
million per annum or the payment of cash dividends or the making of loans or
advances to Xxxxx USA to permit it to make such payments, (k) the declaration
and payment of dividends to holders of any class or series of preferred stock of
the Company and its Restricted Subsidiaries issued in accordance with Section
9.12, (l) the payment of dividends on the Company's Common Stock, following the
first public offering of the Company's or Xxxxx USA's Common Stock after the
Issue Date, of up to 6% per annum of the net proceeds received by the Company in
such public offering or the payment of funds to Xxxxx USA in amounts necessary
to permit Xxxxx USA to make such payments to the extent the proceeds of such
offering were contributed to the equity capital of the Company; (m) so long as
no Default or Event of Default shall have occurred and be continuing (or would
result therefrom), the payment to Xxxxx USA (in the form of dividends, loans,
advances or otherwise) of 100% of the proceeds of Indebtedness incurred pursuant
to clause (xv) of the definition of "Permitted Indebtedness" to redeem,
repurchase, defease or otherwise acquire or retire for value the 10 7/8% Notes;
provided, however, that at the time of such redemption, repurchase, defeasance
or other acquisition or retirement for value, the Consolidated Operating Cash
Flow Ratio of the Company, after giving effect to the incurrence of Indebtedness
in connection therewith, would be greater than 1.75 to 1.0; (n) the payment of
dividends or the making of loans or advances by the Company to Xxxxx USA in an
amount not to exceed $2 million in any fiscal year for costs and expenses
incurred by Xxxxx USA in its capacity as a holding company or for services
rendered to the Company; (o) Restricted Investments not to exceed at any one
time an aggregate of $75 million; and (p) Restricted Investments made with
Excluded Contributions.
72
The board of directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation would not cause
a Default or Event of Default; provided that, in no event shall the business
currently operated by the Company or Xxxxx USA be transferred to or held by an
Unrestricted Subsidiary, unless after giving pro forma effect to such transfer
the Company could have incurred an additional $1.00 of Indebtedness pursuant to
the Consolidated Operating Cash Flow Ratio test set forth in Section 9.12. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated shall be deemed to be Restricted Payments at the
time of such designation and shall reduce the amount available for Restricted
Payments under the first paragraph of this Section 9.09. All such outstanding
Investments shall be deemed to constitute Investments in an amount equal to the
greatest of (x) the net book value of such Investments at the time of such
designation, (y) the fair market value of such Investments at the time of such
designation, and (z) the original fair market value of such Investments at the
time they were made. Such designation shall only be permitted if such Restricted
Payment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
Section 9.10. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company (other than a Securitization Special Purpose Entity) to, create
or otherwise cause or suffer to exist or become effective, any consensual
encumbrance or restriction which, by its terms, restricts the ability of any
Restricted Subsidiary of the Company (other than a Securitization Special
Purpose Entity) to (i) pay dividends or make any other distributions on any such
Restricted Subsidiary's Capital Stock or pay any Indebtedness owed to the
Company or any Restricted Subsidiary of the Company, (ii) make any loans or
advances to the Company or any Restricted Subsidiary of the Company, or (iii)
transfer any of its property or assets to the Company or any Restricted
Subsidiary of the Company, except for, in the case of clauses (i), (ii) and
(iii) above, any restrictions (a) existing under this Indenture and any
restrictions existing or created on the Issue Date pursuant to any agreement
relating to Existing Indebtedness of the Company or any Restricted Subsidiary,
(b) pursuant to an agreement relating to Indebtedness incurred by such
Restricted Subsidiary prior to the date on which such Restricted Subsidiary was
acquired by the Company and outstanding on such date and not incurred in
anticipation of becoming a Restricted Subsidiary, (c) imposed by virtue of
applicable corporate law or regulation and relating solely to the payment of
dividends or distributions to stockholders, (d) with respect to restrictions of
the nature described in clause (iii) above, included in a contract entered into
in the ordinary course of business and consistent with past practices that
contains provisions restricting the assignment of such contract, (e) pursuant to
an agreement effecting a renewal, extension, refinancing, refunding or
replacement of Indebtedness referred to in (a) or (b) above; provided, however,
that the provisions contained in such renewal, extension, refinancing, refunding
or replacement agreement relating to such encumbrance or restriction, taken as a
whole, are not materially more restrictive than the provisions contained in the
agreement the subject thereof, as determined in good faith by the board of
directors, or (f) which shall not in the
73
aggregate cause the Company not to have the funds necessary to pay the principal
of, premium, if any, or interest, including Special Interest, on the Notes at
their Stated Maturity.
Section 9.11. Limitation on Transactions with Shareholders and Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, directly or indirectly, conduct any business or enter into
any transaction or series of similar transactions (including, without
limitation, the purchase, sale, transfer, lease or exchange of any property or
the rendering of any service) with (i) any direct or indirect holder of more
than 5% of any class of Capital Stock of the Company or of any Restricted
Subsidiary of the Company (other than transactions between or among the Company
and/or its Restricted Subsidiaries except for Restricted Subsidiaries owned in
any part by the Principal Shareholders) or (ii) any Affiliate of the Company
(other than transactions between or among the Company and/or its Restricted
Subsidiaries except for Restricted Subsidiaries owned in any part by the
Principal Shareholders) (each of the foregoing, a "Shareholder/Affiliate
Transaction") unless the terms of such business, transaction or series of
transactions (a) are set forth in writing and (b) are as favorable to the
Company or such Restricted Subsidiary in all material respects as terms that
would be obtainable at the time for a comparable transaction or series of
similar transactions in arm's-length dealings with a Person which is not such a
stockholder or Affiliate and, if such transaction or series of transactions
involves payment for services of such a stockholder or Affiliate, (x) for
amounts greater than $10 million and less than $25 million per annum, the
Company shall deliver an Officers' Certificate to the Trustee certifying that
such Shareholder/Affiliate Transaction complies with clause (b) above or (y) for
amounts equal to or greater than $25 million per annum, then (A) a majority of
the disinterested members of the board of directors shall in good faith
determine that such payments are fair consideration for the services performed
or to be performed (evidenced by a Board Resolution) or (B) the Company must
receive a favorable opinion from a nationally recognized investment banking firm
chosen by the Company or, if no such investment banking firm is in a position to
provide such opinion, a similar firm chosen by the Company (having expertise in
the specific area which is the subject of the opinion), that such payments are
fair consideration for the services performed or to be performed (a copy of
which shall be delivered to the Trustee); provided that the foregoing
requirements shall not apply to (i) Shareholder/Affiliate Transactions involving
the purchase or sale of crude oil in the ordinary course of the Company's
business, so long as such transactions are priced in line with the market price
of a crude benchmark and the pricing of such transactions are equivalent to the
pricing of comparable transactions with unrelated third parties; and provided
further that the Gulf Payments shall not be deemed a Shareholder/Affiliate
Transaction, (ii) Restricted Payments permitted by the provisions of this
Indenture described in Section 9.09, (iii) payments made in connection with the
Blackstone Transaction, including fees to Blackstone, (iv) payment of annual
management, consulting, monitoring and advisory fees and related expenses to
Blackstone and its Affiliates, (v) payment of reasonable and customary fees paid
to, and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Restricted Subsidiary, (vi) payments by the
Company or any of its Restricted Subsidiaries to Blackstone and its Affiliates
made for any financial advisory, financing, underwriting or placement services
or in respect of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures which payments are
approved by a majority of the board of directors of the Company in good faith,
(vii) payments or loans to employees or consultants which are approved
74
by a majority of the board of directors of the Company in good faith, (viii) any
agreement in effect on the Issue Date and any amendment thereto (so long as any
such amendment is not disadvantageous to the holders of the Notes in any
material respect) or any transaction contemplated thereby, or (ix) any
stockholder agreement or registration rights agreement to which the Company is a
party on the Issue Date and any similar agreements which it may enter into
thereafter; provided that the performance by the Company or any of its
Restricted Subsidiaries of obligations under any future amendment or under such
a similar agreement entered into after the Issue Date shall only be permitted by
this clause (ix) to the extent that the terms of any such amendment or new
agreement are not disadvantageous to the holders of the Notes in any material
respect.
Section 9.12. Limitation on Indebtedness.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, incur any Indebtedness (including Acquired Debt)
other than (i) the Notes, the Senior Subordinated Notes, and obligations
outstanding under the Loan Agreement, and (ii) Permitted Indebtedness, unless
after giving effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds therefrom, the Company's Consolidated Operating Cash
Flow Ratio is greater than 2 to 1. Notwithstanding the foregoing, the Company's
Unrestricted Subsidiaries may incur Non-Recourse Debt; provided, however, that
if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted
Subsidiary, such event shall be deemed to constitute an incurrence of
Indebtedness by a Restricted Subsidiary of the Company.
Section 9.13. Limitation on Issuance of Guarantees of Indebtedness.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to guarantee or secure the payment of any Indebtedness of the
Company unless such Restricted Subsidiary simultaneously executes and delivers
supplemental indentures to this Indenture providing for the guarantee or
security of the payment of the Notes by such Restricted Subsidiary (other than
the grant of security interests in cash and cash equivalents, receivables and
product inventories to secure obligations under the Credit Agreement). If the
Indebtedness to be guaranteed is subordinated to the Notes, the guarantee or
security of such Indebtedness shall be subordinated to the guarantee or security
of the Notes to the same extent as the Indebtedness to be guaranteed is
subordinated to the Notes under this Indenture. Notwithstanding the foregoing,
any such guarantee or security by a Restricted Subsidiary of the Notes shall
provide by its terms that it shall be automatically and unconditionally released
and discharged upon either (i) the release or discharge of such guarantee or
security of payment of such other Indebtedness, except a discharge by or as a
result of payment under such guarantee or security, or (ii) any sale, exchange
or transfer, to any Person not an Affiliate of the Company, of all of the
Company's Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary, which sale, exchange or transfer is made in compliance
with the applicable provision of this Indenture.
Section 9.14. Other Agreements.
The Company shall not, and shall not permit any Subsidiary of the
Company to, enter into or become a party (including, without limitation, as an
assignee or successor) to any
75
agreement (including, without limitation, a refinancing or refunding of the
Credit Agreement) that would conflict with this Indenture.
Section 9.15. Limitation on Liens.
The Company shall not, directly or indirectly, create, incur, assume
or suffer to exist any Lien (other than Permitted Liens) on any asset now owned
or hereafter acquired, or on any income or profits therefrom, or assign or
convey any right to receive income therefrom to secure any Indebtedness which is
pari passu with or subordinate in right of payment to the Notes, unless the
Notes are secured equally and ratably simultaneously with or prior to the
creation, incurrence or assumption of such Lien for so long as such Lien exists;
provided, that in any case involving a Lien securing Indebtedness which is
subordinated in right of payment to the Notes, such Lien is subordinated to the
Lien securing the Notes to the same extent that such subordinated debt is
subordinated to the Notes.
Section 9.16. Limitation on Certain Asset Dispositions.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, make any Asset Disposition unless (i) the Company or such
Restricted Subsidiary receives consideration at the time of such disposition (or
in the case of a lease, over the term of such lease) at least equal to the fair
market value of the shares or assets disposed of (which shall be as determined
in good faith by the Company), and (ii) at least 75% of the consideration for
such disposition consists of cash or Cash Equivalents; provided that the
following shall be deemed to be cash for purposes of this covenant: (1) the
amount of any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of the Company
or such Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Notes) that are assumed by the transferee of any such
assets, and (2) any notes or other obligations received by the Company or such
Restricted Subsidiary from a transferee that are converted by the Company or
such Restricted Subsidiary into cash within 180 days after such Asset
Disposition; provided, further, that the 75% limitation referred to above in
clause (ii) shall not apply to (x) any disposition of assets in which the cash
portion of such consideration received therefor on an after-tax basis,
determined in accordance with the foregoing proviso, is equal to or greater than
what the after-tax net proceeds would have been had such transaction complied
with the aforementioned 75% limitation, (y) any disposition of assets (other
than the Port Xxxxxx Refinery) in exchange for assets of comparable fair market
value related to the Principal Business of the Company, provided that in any
such exchange of assets of the Company or a Restricted Subsidiary with a fair
market value in excess of $20 million occurring when Blackstone fails to hold,
directly or indirectly, 30% or more of the total voting power of all classes of
stock of the Company, the Company shall obtain an opinion or report from a
nationally recognized investment banking firm, valuation expert or accounting
firm confirming that the assets received by the Company and such Restricted
Subsidiary in such exchange have a fair market value at least equal to the
assets so exchanged or (z) any disposition of Securitization Program Assets to
any Securitization Special Purpose Entity in exchange for Indebtedness of,
procurement of letters of credit and similar instruments by, or equity or other
interests in, such Securitization Special Purpose Entity.
76
Within 360 days of the later of (a) the receipt of the Net Available
Proceeds and (b) the date of such Asset Disposition, the Company may elect to
(i) apply the Net Available Proceeds from such Asset Disposition to permanently
redeem or repay Indebtedness of the Company or any Restricted Subsidiary, other
than Indebtedness of the Company which is subordinated to the Notes, or (ii)
apply the Net Available Proceeds from such Asset Disposition to invest in assets
related to the Principal Business of the Company or Capital Stock of any Person
primarily engaged in the Principal Business if, as a result of such acquisition,
such Person becomes a Restricted Subsidiary. Pending the final application of
any such Net Available Proceeds, the Company may temporarily invest such Net
Available Proceeds in any manner permitted by this Indenture. Any Net Available
Proceeds from an Asset Disposition not applied or invested as provided in the
first sentence of this paragraph shall be deemed to constitute "Excess
Proceeds."
As soon as practical, but in no event later than 10 Business Days
after any date (an "Asset Disposition Trigger Date") that the aggregate amount
of Excess Proceeds exceeds $25 million, the Company shall commence an Offer (as
described in Section 10.09) to purchase the maximum principal amount of Notes
that may be purchased out of the Excess Proceeds and to purchase or prepay the
maximum amount of other Indebtedness of Xxxxx USA or the Company having similar
rights to be so prepaid or purchased out of such Excess Proceeds, in each case
at an Offer price in cash in an amount equal to 100% of the principal amount
thereof, plus accrued and unpaid interest, including Special Interest, to the
date of purchase. To the extent that any Excess Proceeds remain after completion
of an Offer, the Company may use the remaining amount for general corporate
purposes. Upon completion of such Offer, the amount of Excess Proceeds shall be
reset to zero.
Section 9.17. Restrictions on Secured Indebtedness.
The following provision shall apply only upon and after the occurrence
of an Investment Grade Rating Event. If the Company shall incur, issue, assume
or guarantee any Indebtedness secured by a Lien on any Principal Property of the
Company or on any share of stock or Indebtedness of any Restricted Subsidiary
(other than a Securitization Special Purpose Entity), the Company shall secure
the Notes equally and ratably with (or, at the Company's option, prior to) such
secured Indebtedness so long as such Indebtedness shall be so secured, unless
the aggregate amount of all such secured Indebtedness, together with all
Attributable Indebtedness of the Company with respect to any sale and leaseback
transactions involving Principal Properties (with the exception of such
transactions which are excluded as described in clauses (i) through (v) in
Section 9.18 below), would not exceed 10% of Consolidated Net Tangible Assets.
The above restriction does not apply to, and there shall be excluded from
secured Indebtedness in any computation under such restriction, Indebtedness
secured by: (i) Liens on property of, or on any share of stock or Indebtedness
of, any corporation existing at the time such corporation becomes a Restricted
Subsidiary and Liens on any property acquired from a corporation which is merged
with or into the Company or a Subsidiary, (ii) Liens in favor of the Company;
(iii) Liens in favor of governmental bodies to secure progress, advance or other
payments; (iv) Liens upon any property acquired after the date of this
Indenture, securing the purchase price thereof or created or incurred
simultaneously with (or within 270 days after) such acquisition to finance the
acquisition of such property or existing on such property at the time of such
acquisition, or Liens on improvements after such date, in each case subject to
certain
77
conditions and provided that the principal amount of the obligation or
indebtedness secured by such Lien shall not exceed 100% of the cost or fair
value (as determined in good faith by the Company), whichever shall be lower, of
the property at the time of the acquisition, construction or improvement
thereof; (v) Liens securing industrial revenue or pollution control bonds; (vi)
Liens arising out of any final judgment for the payment of money aggregating not
in excess of $25 million which remains unstayed, in effect and unpaid for a
period of 60 consecutive days or Liens arising out of any judgments which are
being contested in good faith; (vii) Permitted Liens in existence on the date of
the Investment Grade Rating Event; (viii) Liens to secure obligations arising
from time to time under the Credit Agreement including Guaranties thereof; or
(ix) any extension, renewal, or replacement of any Lien referred to in the
foregoing clauses (i) through (viii) inclusive.
Section 9.18. Restrictions on Sales and Leasebacks.
The following provision shall apply only upon and after the occurrence
of an Investment Grade Rating Event. The Company may not enter into any sale and
leaseback transaction involving any Principal Property, unless the aggregate
amount of all Attributable Indebtedness of the Company with respect to such
transaction plus all secured Indebtedness (with the exception of secured
Indebtedness which is excluded as described in clauses (i) through (ix) in
Section 9.17 above) would not exceed 10% of Consolidated Net Tangible Assets.
This restriction does not apply to, and there shall be excluded from
Attributable Indebtedness in any computation under such restriction, any sale
and leaseback transaction if: (i) the lease is for a period, including renewal
rights, not in excess of three years; (ii) the sale of the Principal Property is
made within 270 days after its acquisition, construction or improvements; (iii)
the lease secures or relates to industrial revenue or pollution control bonds;
(iv) the transaction is between the Company and a Restricted Subsidiary; or (v)
the Company, within 270 days after the sale is completed, applies to the
retirement of Indebtedness of the Company or a Restricted Subsidiary, or to the
purchase of other property which shall constitute a Principal Property, an
amount not less than the greater of (1) the net proceeds of the sale of the
Principal Property leased or (2) the fair market value (as determined by the
Company in good faith) of the Principal Property leased. The amount to be
applied to the retirement of Indebtedness shall be reduced by (x) the principal
amount of any debentures or notes (including the Notes) of the Company or a
Restricted Subsidiary surrendered within 270 days after such sale to the trustee
for retirement and cancellation, (y) the principal amount of Indebtedness, other
than the items referred to in the preceding clause (x), voluntarily retired by
the Company or a Restricted Subsidiary within 270 days after such sale and (z)
associated transaction expenses.
Section 9.19. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 9.06 to 9.18, inclusive, with
respect to the Securities if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in
78
full force and effect; provided, however, with respect to an Offer to purchase
as to which an Offer has been mailed, no such waiver may be made or shall be
effective against any Holder tendering Securities pursuant to such Offer, and
the Company may not omit to comply with the terms of such Offer as to such
Holder.
Section 9.20. Effect of Investment Grade Rating.
Notwithstanding the foregoing, upon the occurrence of an Investment
Grade Rating Event, Sections 7.01(d) and 7.01(e), 9.09, 9.10, 9.11, 9.12, 9.15
and 9.16 shall be of no further force or effect and shall cease to apply to the
Company and, in lieu thereof, Sections 9.17 and 9.18 shall take effect.
ARTICLE 10.
-----------
REDEMPTION OF SECURITIES
------------------------
Section 10.01. Right of Redemption.
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time on and after November 15, 2002
at the Redemption Prices specified in the form of Security attached hereto,
together with accrued and unpaid interest to the Redemption Date.
In addition, the Company may, at its option, use the net cash proceeds
of one or more Equity Offerings to the extent the net cash proceeds thereof are
contributed to the equity capital of the Company to redeem for cash at any time
prior to November 15, 2001 up to 35% in aggregate initial principal amount of
the Securities, in whole or in part, at a redemption price equal to 108.375% of
the aggregate principal amount so redeemed, plus accrued interest, to the
Redemption Date; provided that at least 65% of the principal amount of
Securities originally issued remain outstanding immediately after such
redemption. Any such redemption will be required to occur on or prior to 120
days after the receipt by the Company of the proceeds of any such Equity
Offering and upon not less than 30 nor more than 60 days' notice mailed to each
holder of Securities to be redeemed at such holder's address appearing in the
Company's Security Register, in principal amounts of $1,000 or an integral
multiple of $1,000. The Company may not use the net cash proceeds of any Equity
Offerings which alone or combined with a related series of transactions result
in a Change of Control to redeem Securities pursuant to this paragraph.
Section 10.02. Applicability of Article.
Redemption of the Securities at the election of the Company, as
permitted by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
Section 10.03. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 10.01 shall be evidenced by a Board Resolution, which Board Resolution
shall be delivered to the
79
Trustee at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee). In case of any
redemption at the election of the Company of less than all the Securities, the
Company shall notify the Trustee in writing of such Redemption Date and of the
principal amount of Securities to be redeemed upon delivery of the Board
Resolution related to such redemption.
Section 10.04. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by lot or by such method as the Trustee shall deem fair
and appropriate (and in a manner that complies with applicable legal and
securities exchange requirements, if any) and which may provide for the
selection for redemption of portions (equal to $1,000 or any integral multiple
thereof) of the principal amount of Securities of a denomination larger than
$1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
In the event that the Company is required to make an Offer to purchase
pursuant to Sections 10.09 or 9.16 and the amount available for such Offer is
not an integral multiple of $1,000, the Trustee shall promptly refund to the
Company any remaining excess proceeds, which shall be less than $1,000.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 10.05. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed,
80
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof to be redeemed and
that, unless the Company defaults in making the redemption payment,
interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
(7) if any of the Securities are being redeemed in part, that on or
after the redemption date a new Security in principal amount equal to the
unredeemed portion thereof will be issued,
(8) the provision of the Securities pursuant to which the Securities
called for redemption are being redeemed,
(9) the aggregate principal amount of Securities that are being
redeemed, and
(10) the CUSIP number of the Securities that are being redeemed.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 10.06. Deposit of Redemption Price.
Prior to 11:00 a.m. New York City time on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 9.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
Section 10.07. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall not bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price together with accrued interest to
the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 2.12.
81
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.08. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Section 10.09. Offer to Purchase.
Within 30 days following a Change of Control resulting in a Rating
Decline and on any Asset Disposition Trigger Date, the Company shall mail to
each holder of Securities, at such holder's registered address, a notice
stating: (i) that an offer (an "Offer") is being made as a result of a Change of
Control or one or more Asset Dispositions, the length of time the Offer shall
remain open, and the maximum aggregate principal amount of Securities that shall
be accepted for payment pursuant to such Offer, (ii) the purchase price, the
amount of accrued and unpaid interest (including Special Interest) as of the
purchase date, and the purchase date (the "Purchase Date"), (iii) in the case of
a Change of Control, the circumstances and material facts regarding such Change
of Control, to the extent known to the Company (including, but not limited to,
information with respect to pro forma and historical financial information after
giving effect to such Change of Control, and information regarding the Person or
Persons acquiring control) and (iv) such other information required by this
Indenture and applicable laws and regulations.
On the Purchase Date for any Offer, the Company shall (1) in the case
of an Offer resulting from a Change of Control, accept for payment all
Securities tendered pursuant to such Offer and, in the case of an Offer
resulting from one or more Asset Dispositions, accept for payment the maximum
principal amount of Securities tendered pursuant to such Offer that can be
purchased out of Excess Proceeds from such Asset Dispositions, which amount
shall equal the product of (a) the amount of such Excess Proceeds and (b) a
fraction whose numerator is the aggregate amount of all obligations owing under
Securities tendered pursuant to such offering and whose denominator is the sum
of the aggregate amount of all obligations owing under Securities tendered
pursuant to such offering and the aggregate amount of all obligations owing
under other Indebtedness of Xxxxx USA or the Company tendered pursuant to
similar rights to prepayment or repurchase, (2) deposit with the Paying Agent
the aggregate purchase price of all Securities accepted for payment and any
accrued and unpaid interest, including Special Interest, on such Securities as
of the Purchase Date, and (3) deliver or cause to be delivered to the Trustee
all Securities tendered pursuant to the Offer. If less than all Securities
tendered pursuant to any Offer are accepted for payment by the Company for any
reason, selection of the Securities to be purchased shall be in compliance with
the requirements of the principal national securities
82
exchange, if any, on which the Securities are listed or, if the Securities are
not so listed, by lot or by such method as the Trustee shall deem fair and
appropriate; provided that Securities accepted for payment in part shall only be
purchased in integral multiples of $1,000. The Paying Agent shall promptly mail
to each holder of Securities accepted for payment an amount equal to the
Purchase price for such Securities plus any accrued and unpaid interest,
including Special Interest thereon, the Trustee shall promptly authenticate and
mail to such holder of Securities accepted for payment in part new Securities
equal in principal amount to any unpurchased portion of the Securities, and any
Securities not accepted for payment in whole or in part shall be promptly
returned to the holder thereof. On and after a Purchase Date, interest shall
cease to accrue on the Securities accepted for payment. The Company shall
announce the results of the Offer to holders of the Securities on or as soon as
practicable after the Purchase Date.
The Company shall comply with all applicable requirements of Rule 14e-
1 under the Exchange Act and all other applicable securities laws and
regulations thereunder, to the extent applicable, in connection with any Offer.
Other than as specifically provided in this Section 10.09, any
purchase pursuant to this Section 10.09 shall be made pursuant to the provisions
of Sections 10.01 through 10.08 hereof.
ARTICLE 11.
-----------
This Article intentionally left blank.
ARTICLE 12.
-----------
CHANGE OF CONTROL TRIGGERING EVENT
----------------------------------
Section 12.01. Change of Control Triggering Event.
In the event that there shall occur a Change of Control Triggering
Event, then the Company shall make an Offer in accordance with Section 10.09
hereof to purchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Securities at a purchase price equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest, including
Special Interest to the date of purchase.
83
ARTICLE 13.
-----------
DEFEASANCE AND COVENANT DEFEASANCE
----------------------------------
Section 13.01. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time, elect
to have either Section 13.02 or Section 13.03 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
Thirteen.
Section 13.02. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 13.01
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities, on and after
the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 13.05 hereof and the other Sections of this
Indenture referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 13.04 and as more fully set forth in such Section, payments in respect
of the principal of (and premium, if any) and interest, including Special
Interest, on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Article 2 and Section 9.02
hereof, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article Thirteen. Subject to compliance with this Article
Thirteen, the Company may exercise its option under this Section 13.02
notwithstanding the prior exercise of its option under Section 13.03.
Section 13.03. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 13.01
applicable to this Section, (i) the Company shall be released from its
obligations under Sections 9.06 through 9.18, inclusive and Section 9.20,
Section 10.09, Article 12, and Article 7 hereof and (ii) the occurrence of an
event specified in Sections 4.01(3), 4.01(4) (with respect to any of Sections
9.06 through 9.18, inclusive and 9.20, Section 10.09 and Article 12), 4.01(5)
and 4.01(6) shall not be deemed to be an Event of Default (hereinafter,
"covenant defeasance"), and the Securities shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, such covenant defeasance means that
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section, Clause or
Article, whether directly or indirectly by reason of any reference elsewhere
herein to any such Section, Clause or Article or by reason of any reference in
any such Section, Clause or
84
Article to any other provision herein or in any other document shall not
constitute a Default or an Event of Default under Section 4.01 hereof, but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
13.02 or Section 13.03 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 5.10 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the principal
of (premium, if any) and each installment of interest, including Special
Interest, on the Securities on the Stated Maturity of such principal in
accordance with the terms of this Indenture and of such Securities. For
this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by
such depository receipt.
(2) In the case of an election under Section 13.02, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based
85
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities will not recognize gain or loss for Federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject
to Federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit, defeasance and
discharge had not occurred.
(3) In the case of an election under Section 13.03, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 4.01(7)
and (8) are concerned, at any time during the period ending on the 90th day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(6) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
the Trust Indenture Act).
(7) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
13.02 or the covenant defeasance under Section 13.03 (as the case may be)
have been complied with.
(9) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such act or exempt from regulation thereunder.
(10) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the passing of 90 days following such
deposit, the
86
trust funds will not be subject to the effect of any proceeding or any
bankruptcy, insolvency, reorganization, or similar laws regarding
creditors' rights generally.
Section 13.05. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 9.03, all
money and U.S. Government obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 13.05, the "Trustee") pursuant to Section 13.04 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, including Special Interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee its officers,
directors, employees and agents against any tax, fee or other charge imposed on
or assessed against the U.S. Government Obligations deposited pursuant to
Section 13.04 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the Outstanding Securities. The indemnity of this Section 13.05 shall
survive the termination of this Indenture or the earlier resignation or removal
of the Trustee.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 13.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 13.07. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 13.02 or 13.03 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Thirteen until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 13.02 or 13.03;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or any applicable interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or the Paying Agent.
87
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, as of the day and year first above written.
XXXXX REFINING & MARKETING, INC.
By
------------------------------
Attest:
------------------------------
Bankers Trust Company
as Trustee
By
------------------------------
Authorized Signatory
Attest:
------------------------------
TABLE OF CONTENTS
---------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture
Page
----
PARTIES........................................................................ 1
RECITALS OF THE COMPANY........................................................ 1
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............ 1
Section 1.01. Definitions.................................................. 1
Section 1.02. Compliance Certificates and Opinions.........................24
Section 1.03. Form of Documents Delivered to Trustee.......................24
Section 1.04. Acts of Holders; Record Dates................................25
Section 1.05. Notices, Etc., to Trustee and Company........................26
Section 1.06. Notice to Holders; Waiver....................................26
Section 1.07. Conflict with Trust Indenture Act............................27
Section 1.08. Effect of Headings and Table of Contents.....................27
Section 1.09. Successors and Assigns.......................................27
Section 1.10. Separability Clause..........................................27
Section 1.11. Benefits of Indenture........................................27
Section 1.12. Governing Law................................................27
Section 1.13. Legal Holidays...............................................27
Section 1.14. No Recourse Against Others...................................28
ARTICLE 2 THE SECURITIES......................................................28
Section 2.01. Form and Dating..............................................28
Section 2.02. Execution and Authentication.................................29
Section 2.03. Registrar and Paying Agent...................................30
Section 2.04. Paying Agent to Hold Money in Trust..........................30
i
Section 2.05. Holder Lists........................................................31
Section 2.06. Transfer and Exchange...............................................31
Section 2.07. Replacement Securities..............................................44
Section 2.08. Outstanding Securities..............................................45
Section 2.09. Treasury Securities.................................................45
Section 2.10. Temporary Securities................................................45
Section 2.11. Cancellation........................................................46
Section 2.12. Defaulted Interest..................................................46
ARTICLE 3. SATISFACTION AND DISCHARGE.............................................46
Section 3.01. Satisfaction and Discharge of Indenture.............................46
Section 3.02. Application of Trust Money..........................................48
ARTICLE 4. REMEDIES...............................................................48
Section 4.01. Events of Default...................................................48
Section 4.02. Acceleration of Maturity; Rescission and Annulment..................50
Section 4.03. Collection of Indebtedness and Suits for Enforcement by Trustee.....51
Section 4.04. Trustee May File Proofs of Claim....................................51
Section 4.05. Trustee May Enforce Claims Without Possession of Securities.........52
Section 4.06. Application of Money Collected......................................52
Section 4.07. Limitation on Suits.................................................52
Section 4.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest............................................................53
Section 4.09. Restoration of Rights and Remedies..................................53
Section 4.10. Rights and Remedies Cumulative......................................53
Section 4.11. Delay or Omission Not Waiver........................................54
Section 4.12. Control by Holders..................................................54
Section 4.13. Waiver of Past Defaults.............................................54
Section 4.14. Undertaking for Costs...............................................55
Section 4.15. Waiver of Stay, Extension or Usury Laws.............................55
ii
ARTICLE 5. THE TRUSTEE..................................................................................55
Section 5.01. Certain Duties and Responsibilities.......................................................55
Section 5.02. Notice of Defaults........................................................................56
Section 5.03. Certain Rights of Trustee.................................................................56
Section 5.04. Not Responsible for Recitals or Issuance of Securities....................................57
Section 5.05. May Hold Securities.......................................................................57
Section 5.06. Money Held in Trust.......................................................................57
Section 5.07. Compensation and Reimbursement............................................................57
Section 5.08. Administrative Expense..........................................Error! Bookmark not defined.
Section 5.09. Disqualification; Conflicting Interests...................................................58
Section 5.10. Corporate Trustee Required; Eligibility...................................................59
Section 5.11. Resignation and Removal; Appointment of Successor.........................................59
Section 5.12. Acceptance of Appointment by Successor....................................................60
Section 5.13. Merger, Conversion, Consolidation or Succession to Business...............................60
Section 5.14. Preferential Collection of Claims Against Company.........................................61
Section 5.15. Appointment of Authenticating Agent.......................................................61
ARTICLE 6. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................................64
Section 6.01. Company to Furnish Trustee Names and Addresses of Holders.................................64
Section 6.02. Preservation of Information; Communications to Holders....................................64
Section 6.03. Reports by Trustee........................................................................64
Section 6.04. Reports by Company........................................................................64
ARTICLE 7. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.........................................65
Section 7.01. Company May Consolidate, Etc., Only on Certain Terms......................................65
Section 7.02. Successor Substituted.....................................................................65
ARTICLE 8. SUPPLEMENTAL INDENTURES......................................................................66
Section 8.01. Supplemental Indentures Without Consent of Holders........................................66
Section 8.02. Supplemental Indentures with Consent of Holders...........................................66
iii
Section 8.03. Execution of Supplemental Indentures.....................................................67
Section 8.04. Effect of Supplemental Indentures........................................................67
Section 8.05. Conformity with Trust Indenture Act......................................................68
Section 8.06. Reference in Securities to Supplemental Indentures.......................................68
Section 8.07. Notice of Supplemental Indentures........................................................68
ARTICLE 9. COVENANTS...................................................................................68
Section 9.01. Payment of Principal, Premium and Interest...............................................68
Section 9.02. Maintenance of Office or Agency..........................................................68
Section 9.03. Money for Securities Payments to Be Held in Trust........................................69
Section 9.04. Statement by Officers as to Default......................................................70
Section 9.05. Existence................................................................................71
Section 9.06. Maintenance of Properties................................................................71
Section 9.07. Payment of Taxes and Other Claims........................................................71
Section 9.08. Provision of Financial Information.......................................................71
Section 9.09. Limitation on Restricted Payments........................................................72
Section 9.10. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries..................................................................74
Section 9.11. Limitation on Transactions with Shareholders and Affiliates..............................75
Section 9.12. Limitation on Indebtedness...............................................................76
Section 9.13. Limitation on Issuance of Guarantees of Indebtedness.....................................77
Section 9.14. Other Agreements.........................................................................77
Section 9.15. Limitation on Liens......................................................................77
Section 9.16. Limitation on Certain Asset Dispositions.................................................77
Section 9.17. Restrictions on Secured Indebtedness.....................................................79
Section 9.18. Restrictions on Sales and Leasebacks.....................................................79
Section 9.19. Waiver of Certain Covenants..............................................................80
Section 9.20. Effect of Investment Grade Rating........................................................80
ARTICLE 10. REDEMPTION OF SECURITIES...................................................................80
iv
Section 10.01. Right of Redemption......................................................................80
Section 10.02. Applicability of Article.................................................................81
Section 10.03. Election to Redeem; Notice to Trustee....................................................81
Section 10.04. Selection by Trustee of Securities to Be Redeemed........................................81
Section 10.05. Notice of Redemption.....................................................................82
Section 10.06. Deposit of Redemption Price..............................................................83
Section 10.07. Securities Payable on Redemption Date....................................................83
Section 10.08. Securities Redeemed in Part..............................................................83
Section 10.09. Offer to Purchase........................................................................83
ARTICLE 11...............................................................................................85
ARTICLE 12. CHANGE OF CONTROL TRIGGERING EVENT..........................................................85
Section 12.01. Change of Control Triggering Event.......................................................85
ARTICLE 13. DEFEASANCE AND COVENANT DEFEASANCE..........................................................85
Section 13.01. Company's Option to Effect Defeasance or Covenant Defeasance.............................85
Section 13.02. Defeasance and Discharge.................................................................85
Section 13.03. Covenant Defeasance......................................................................86
Section 13.04. Conditions to Defeasance or Covenant Defeasance..........................................86
Section 13.05. Deposited Money and U.S. Government Obligations to be Held in Trust
Other Miscellaneous Provisions...........................................................88
Section 13.06. Reinstatement............................................................................89
EXHIBITS
--------
Exhibit A FORM OF SECURITY
Exhibit B CERTIFICATE OF TRANSFER
Exhibit C CERTIFICATE OF EXCHANGE
Exhibit D CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
v
--------------------------------------------------------------------------------
Xxxxx Refining & Marketing, Inc.
TO
Bankers Trust Company
Trustee
_______________________
INDENTURE
Dated as of November 21, 1997
8 3/8% Senior Notes due 2007
--------------------------------------------------------------------------------
EXHIBIT A
(Face of Security)
XXXXX REFINING & MARKETING, INC.
8 3/8% SENIOR NOTES DUE 2007
No. __________ $98,500,000
Xxxxx Refining & Marketing, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum set forth above or such other principal sum indicated on the
Schedule attached hereto (which shall not exceed $100,000,000) in United States
Dollars on November 15, 2007, and to pay interest at the rate of 8 3/8% per
annum from the Issue Date or from the most recent Interest Payment Date to which
interest has been paid or duly provided for in cash in arrears on each May 15
and November 15 to the person whose name the Security is registered at the close
of business on the May 1 or November 1 next preceding such Interest Payment
Date, until the principal hereof is paid or made available for payment;
provided, however, in the event that (i) the Company has not filed the
registration statement relating to the Exchange Offer within 90 days following
the Issue Date, or (ii) such registration statement has not become effective
within 180 days following the Issue Date, (iii) the resale registration
statement has not become effective within 105 days of the date on which the
obligation to file such resale registration statement arose, or (iv) the
Exchange Offer has not been consummated within 30 business days after the
effectiveness deadline of the Exchange Offer Registration Statement, (v) the
Company has not filed the resale registration statement within 45 days after the
obligation to file such resale registration statement arose, or (vi) any
registration statement required by the Registration Rights Agreement is filed
and declared effective but shall thereafter cease to be effective (except as
specifically permitted therein) without being succeeded within 30 days by an
additional registration statement filed and declared effective (any such event
referred to in Clauses (i) through (vi), the "Registration Default"), then, as
liquidated damages for such Registration Default, subject to the Registration
Rights Agreement, the per annum interest rate on the Notes will increase by
0.25% ("Special Interest") for the period from the occurrence of the
Registration Default until such time as no Registration Default is in effect (at
which time the interest rate will be reduced to its initial rate). If the
Company has not consummated the Exchange Offer (or, if applicable, the resale
registration has not become effective), within 270 days following the Issue
Date, then the per annum dividend rate on the Securities will increase by an
additional 0.25% for so long as the Company has not consummated the Exchange
Offer (or until such resale registration becomes effective).
Any accrued and unpaid interest on this Security upon the issuance of
an Exchange Note in exchange for this Security shall cease to be payable to the
Holder hereof but such accrued and unpaid interest shall be payable on the next
Interest Payment Date for such Exchange Note to the Holder thereof on the
related Regular Record Date.
A-1
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 1 or November 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date at the
office or agency of the Company at New York, New York maintained for such
purpose and at any other office or agency maintained by the Company for such
purchase (any such location being called a "Place of Payment"); provided,
however, that at the option of the Company payment of interest may be made by
check to the address of the Person entitled thereto as such address shall appear
on the Security Register. Interest shall be payable in cash. Any such interest
not so punctually paid or duly provided, and interest on such defaulted interest
at the interest rate borne by the Securities, to the extent lawful, shall
forthwith cease to be payable to the Holder on such Regular Record Date and
shall be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a special
record date ("Special Record Date") for the payment of such defaulted interest
to be fixed by the Company with the consent of the Trustee, notice whereof shall
be given to Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements (if applicable) of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such securities exchange, all as more fully provided in said Indenture.
If this Security is a Global Security, all payments in respect of this
Security will be payable to the Global Security Holder in its capacity as the
registered Holder under the Indenture. If this Security is not a Global
Security, payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the City and State of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts, or at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; provided,
however, that payment by wire transfer of immediately available funds will be
required with respect to principal of, premium, if any, and interest on, all
Global Securities and all other Securities the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: November 21, 1997
XXXXX REFINING & MARKETING, INC.
By
-----------------------------
Name:
Title:
Certificate of Authentication
This is one of the 8 3/8% Senior Notes due 2007 referred to in the
within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
-----------------------------
Authorized Signatory
A-3
(Back of Security)
THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE
144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON
WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION
OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
A-4
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. EACH IAI THAT IS NOT A QIB WILL BE
REQUIRED TO EFFECT ANY TRANSFER OF NOTES OR INTERESTS THEREIN (OTHER THAN
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT) THROUGH ONE OF THE INITIAL
PURCHASERS. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
This Security is one of a duly authorized issue of securities of the
Company designated as its 8 3/8% Senior Notes due 2007 (herein called the
"Securities"), issued and to be issued in one or more series under an Indenture,
dated as of November 21, 1997 (as it may from time to time be supplemented or
amended by one or more supplemental indentures, herein called the "Indenture"),
between the Company and Bankers Trust Company, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company and the Trustee of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This issue of Securities is limited in aggregate principal amount to
$100,000,000.
The Securities are subject to redemption at the option of the Company,
in whole or in part at any time on or after November 15, 2002, upon not less
than 30 nor more than 60 days' notice mailed to each holder of Securities to be
redeemed at such holder's address appearing on the Company' Securities
Registrar, in principal amounts of $1,000 or an integral multiple of $1,000, at
the following redemption prices (expressed as percentages of the principal
amount) if redeemed during the 12-month period commencing on November 15 of each
of the years set forth below, plus, in each case, interest accrued thereon to,
but excluding, the date of redemption.
Year Percentage
---- ----------
2002 104.187%
2003 102.094%
2004 and thereafter 100.000%
In addition, the Company may, at its option, use the net cash proceeds
of one or more Equity Offerings to the extent the net cash proceeds thereof are
contributed to the equity capital of the Company to redeem for cash up to 35% in
aggregate principal amount of the Securities originally issued under the
Indenture at any time prior to November 15, 2001, at a redemption price equal to
108.375% of the aggregate principal amount so redeemed, plus accrued interest,
including Special Interest, to the Redemption Date; provided that at least 65%
of the principal amount of Securities originally issued remain outstanding
immediately after such
A-5
redemption. Any such redemption shall be required to occur on or prior to 120
days after the receipt by the Company of the Net Available Proceeds of such
Equity Offering and upon not less than 30 nor more than 60 days' notice mailed
to each holder of Securities to be redeemed at such holder's address appearing
in the Company's Security Register, in principal amounts of $1,000 or an
integral multiple of $1,000. The Company may not use the Net Available Proceeds
of any Equity Offerings which alone or combined with a related series of
transactions result in a Change of Control to redeem Securities pursuant to this
paragraph.
If less than all of the Securities are to be redeemed at any time, the
Trustee shall select, in such manner as it shall deem fair and appropriate, the
particular Securities to be redeemed; provided that Securities redeemed in part
will only be redeemed in integral multiples of $1,000.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Available Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control Triggering Event occurs, the Company
shall be required to make an Offer to purchase for some or all of the Securities
in accordance with the terms of the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
In the event of redemption or purchase pursuant to a mandatory offer
to purchase of this Security in part only, a new Security or Securities for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. The Indenture also provides that, without
notice to or consent of any Holder, the Company and the Trustee may enter into
one or more supplemental indentures to, among other things, cure any ambiguity,
defect or inconsistency, provide for uncertificated securities in addition to or
in place of certificated Securities, or make any other change, in each case,
that does not adversely affect the rights of any Holder of a Security in any
material respect. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
A-6
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest, including Special Interest, if any, on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest, including Special
Interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiples of $1,000. As provided in
the Indenture and subject to certain limitations therein set forth, Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made to the Holder for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No director, officer, employee, stockholder or incorporator, as such, of
the Company shall have any liability for any obligations of the Company under
the Securities or the Indenture for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
Interest on this Security shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York (without giving effect to
conflicts of law principles thereof).
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety by the
Company pursuant to Sections 10.09 and 9.16 of the Indenture, check the box: [_]
If you want to elect to have only a part of this Security purchased by the
Company pursuant to Sections 10.09 and 9.16 of the Indenture, state the amount
(which must be $1,000 or integral multiples thereof): $____________________.
Dated: ___________ Your Signature: _________________________________
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee: ___________________________________________________
(Signature must be guaranteed by a member firm
of a national securities exchange or a commercial
bank or trust company)
A-8
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: _________ Your Signature: _________________________________
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:
A-9
SCHEDULE OF EXCHANGES OF SECURITIES
The following exchanges of a part of this Global Note for another Global
Note or for Definitive Securities have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Security
Date of Exchange this Global Security this Global Security (or increase) Custodian
---------------- --------------------- --------------------- ----------------------- ---------------------
X-00
XXXXXXX X-0
(Face of Temporary Global Security)
XXXXX REFINING & MARKETING, INC.
8 3/8% SENIOR NOTES DUE 2007
No. __________ $1,500,000
Xxxxx Refining & Marketing, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of up to $100,000,000 in United States Dollars on November 15,
2007, and to pay interest at the rate of 8 3/8% per annum from the Issue Date or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for in cash in arrears on each May 15 and November 15 to the
person whose name the Security is registered at the close of business on the May
1 or November 1 next preceding such Interest Payment Date, until the principal
hereof is paid or made available for payment; provided, however, in the event
that (i) the Company has not filed the registration statement relating to the
Exchange Offer within 90 days following the Issue Date, or (ii) such
registration statement has not become effective within 180 days following the
Issue Date, (iii) the resale registration statement has not become effective
within 105 days of the date on which the obligation to file such resale
registration statement arose, or (iv) the Exchange Offer has not been
consummated within 30 business days after the effectiveness deadline of the
Exchange Offer Registration Statement, (v) the company has not filed the resale
registration statement within 45 days after the obligation to file such resale
registration statement arose, or (vi) any registration statement required by the
Registration Rights Agreement is filed and declared effective but shall
thereafter cease to be effective (except as specifically permitted therein)
without being succeeded within 30 days by an additional registration statement
filed and declared effective (any such event referred to in Clauses (i) through
(vi), the "Registration Default"), then, as liquidated damages for such
Registration Default, subject to the Registration Rights Agreement, the per
annum interest rate on the Notes will increase by 0.25% ("Special Interest") for
the period from the occurrence of the Registration Default until such time as no
Registration Default is in effect (at which time the interest rate will be
reduced to its initial rate). If the Company has not consummated the Exchange
Offer (or, if applicable, the resale registration has not become effective),
within 270 days following the Issue Date, then the per annum dividend rate on
the Securities will increase by an additional 0.25% for so long as the Company
has not consummated the Exchange Offer (or until such resale registration
becomes effective).
Any accrued and unpaid interest on this Security upon the issuance of
an Exchange Note in exchange for this Security shall cease to be payable to the
Holder hereof but such accrued and unpaid interest shall be payable on the next
Interest Payment Date for such Exchange Note to the Holder thereof on the
related Regular Record Date.
A-1-1
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 1 or November 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date at the
office or agency of the Company at New York, New York maintained for such
purpose and at any other office or agency maintained by the Company for such
purchase (any such location being called a "Place of Payment"); provided,
however, that at the option of the Company payment of interest may be made by
check to the address of the Person entitled thereto as such address shall appear
on the Security Register. Interest shall be payable in cash. Any such interest
not so punctually paid or duly provided, and interest on such defaulted interest
at the interest rate borne by the Securities, to the extent lawful, shall
forthwith cease to be payable to the Holder on such Regular Record Date and
shall be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a special
record date ("Special Record Date") for the payment of such defaulted interest
to be fixed by the Company with the consent of the Trustee, notice whereof shall
be given to Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements (if applicable) of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such securities exchange, all as more fully provided in said Indenture.
If this Security is a Global Security, all payments in respect of this
Security will be payable to the Global Security Holder in its capacity as the
registered Holder under the Indenture. If this Security is not a Global
Security, payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the City and State of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts, or at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; provided,
however, that payment by wire transfer of immediately available funds will be
required with respect to principal of, premium, if any, and interest on, all
Global Securities and all other Securities the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
A-1-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: November 21, 1997
XXXXX REFINING & MARKETING, INC.
By __________________________
Name:
Title:
Certificate of Authentication
Dated: November 21, 1997
This is one of the 8 3/8% Senior Notes due 2007 referred to in the
within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By: _____________________________
Authorized Signatory
A-1-3
(Back of Temporary Global Note)
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR BENEFICIAL INTERESTS IN THE
REGULATION S PERMANENT GLOBAL NOTE, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION
S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE
144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON
WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING
A-1-4
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION OF TRANSFER
OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN
EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. EACH IAI THAT IS NOT A QIB WILL BE REQUIRED TO
EFFECT ANY TRANSFER OF NOTES OR INTERESTS THEREIN (OTHER THAN PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT) THROUGH ONE OF THE INITIAL PURCHASERS. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
This Security is one of a duly authorized issue of securities of the
Company designated as its 8 3/8% Senior Notes due 2007 (herein called the
"Securities"), issued and to be issued in one or more series under an Indenture,
dated as of November 21, 1997 (as it may from time to time be supplemented or
amended by one or more supplemental indentures, herein called the "Indenture"),
between the Company and Bankers Trust Company, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company and the Trustee of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This issue of Securities is limited in aggregate principal amount to
$100,000,000.
The Securities are subject to redemption at the option of the Company,
in whole or in part at any time on or after November 15, 2002, upon not less
than 30 nor more than 60 days' notice mailed to each holder of Securities to be
redeemed at such holder's address appearing on the Company' Securities
Registrar, in principal amounts of $1,000 or an integral multiple of $1,000, at
the following redemption prices (expressed as percentages of the principal
amount) if redeemed during the 12-month period commencing on November 15 of each
of the years set forth below, plus, in each case, interest accrued thereon to,
but excluding, the date of redemption.
A-1-5
Year Percentage
---- ----------
2002 104.187%
2003 102.094%
2004 and thereafter 100.000%
In addition, the Company may, at its option, use the net cash proceeds
of one or more Equity Offerings to the extent the net cash proceeds thereof are
contributed to the equity capital of the Company to redeem for cash up to 35% in
aggregate principal amount of the Securities originally issued under the
Indenture at any time prior to November 15, 2001, at a redemption price equal to
108.375% of the aggregate principal amount so redeemed, plus accrued interest,
including Special Interest, to the Redemption Date; provided that at least 65%
of the principal amount of Securities originally issued remain outstanding
immediately after such redemption. Any such redemption shall be required to
occur on or prior to 120 days after the receipt by the Company of the Net
Available Proceeds of such Equity Offering and upon not less than 30 nor more
than 60 days' notice mailed to each holder of Securities to be redeemed at such
holder's address appearing in the Company's Security Register, in principal
amounts of $1,000 or an integral multiple of $1,000. The Company may not use the
Net Available Proceeds of any Equity Offerings which alone or combined with a
related series of transactions result in a Change of Control to redeem
Securities pursuant to this paragraph.
If less than all of the Securities are to be redeemed at any time, the
Trustee shall select, in such manner as it shall deem fair and appropriate, the
particular Securities to be redeemed; provided that Securities redeemed in part
will only be redeemed in integral multiples of $1,000.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Available Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control Triggering Event occurs, the Company
shall be required to make an Offer to purchase for some or all of the Securities
in accordance with the terms of the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
In the event of redemption or purchase pursuant to a mandatory offer
to purchase of this Security in part only, a new Security or Securities for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the
A-1-6
time Outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all Securities, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. The Indenture also provides that,
without notice to or consent of any Holder, the Company and the Trustee may
enter into one or more supplemental indentures to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated securities in
addition to or in place of certificated Securities, or make any other change, in
each case, that does not adversely affect the rights of any Holder of a Security
in any material respect. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest, including Special Interest, if any, on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
Until this Regulation S Temporary Global Note is exchanged for one or
more Regulation S Permanent Global Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Notes under the Indenture.
As provided in the Indenture, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest, including Special
Interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiples of $1,000. As provided in
the Indenture and subject to certain limitations therein set forth, Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
This Regulation S Temporary Global Note is exchangeable in whole or in
part for one or more Global Notes only (i) on or after the termination of the
40-day restricted period (as defined in Regulation S) and (ii) upon presentation
of certificates (accompanied by an Opinion of Counsel, if applicable) required
by Article 2 of the Indenture. Upon exchange of this Regulation S Temporary
Global Note for one or more Global Notes, the Trustee shall cancel this
Regulation S Temporary Global Note.
A-1-7
No service charge shall be made to the Holder for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No director, officer, employee, stockholder or incorporator, as such,
of the Company shall have any liability for any obligations of the Company under
the Securities or the Indenture for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
Interest on this Security shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York (without giving effect to
conflicts of law principles thereof).
A-1-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Sections 10.09 and 9.16 of the Indenture, check the
box: [_]
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Sections 10.09 and 9.16 of the Indenture, state the
amount (which must be $1,000 or integral multiples thereof):
$____________________.
Dated: ___________ Your Signature: _________________________________
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee: ___________________________________
(Signature must be guaranteed by a member firm
of a national securities exchange or a commercial
bank or trust company)
A-1-9
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_______________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: _________ Your Signature: _________________________________
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:
A-1-10
SCHEDULE OF EXCHANGES OF SECURITIES
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note or for Definitive Securities, or of
other Restricted Global Notes or Definitive Securities for an interest in this
Regulation S Temporary Global Note, have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized officer of
Date of Exchange Principal Amount of Principal Amount of following such decrease Trustee or Security
------------------- this Global Security this Global Security (or increase) Custodian
--------------------- ----------------------- ----------------------- ---------------------
A-1-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Xxxxx Refining & Marketing, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 000000
Bankers Trust Company
Xxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxx Refining & Marketing, Inc. ____________________ [notes]
Reference is hereby made to the Indenture with respect to the above-
referenced securities, dated as of November 21, 1997 (the "Indenture"), between
Xxxxx Refining & Marketing, Inc., as issuer (the "Company"), and Bankers Trust
Company, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of U.S. $_________ in such Note[s] or interests (the
"Transfer"), to __________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] Check if Transferee will take delivery of a beneficial interest in the
144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [_] Check if Transferee will take delivery of a beneficial interest in the
Regulation S Permanent Global Note or a Definitive Note pursuant to Regulation
S. The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and,
B-1
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Permanent Global Note,
the Regulation S Temporary Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
3. [_] Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Definitive Note pursuant to any provision
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial
B-2
interests in a Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the Indenture
and (2) if such Transfer is in respect of a principal amount of Notes at the
time of transfer of less than U.S. $250,000, an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the IAI Global Note and/or the Definitive Notes and
in the Indenture and the Securities Act.
4. [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [_] Check if Transfer is pursuant to Rule 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [_] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) [_] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, or Rule
904 and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
B-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
------------------------------
[Insert Name of Transferor]
By:
---------------------------
Name:
Title:
Dated: _______________, ____
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP _________), or
(iii) [_] IAI Global Note (CUSIP ________); or
(b) [_] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP ________), or
(ii) [_] Regulation S Global Note (CUSIP ________), or
(iii) [_] IAI Global Note (CUSIP ________); or
(iv) [_] Unrestricted Global Note (CUSIP ________); or
(b) [_] a Restricted Definitive Note; or
(c) [_] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Xxxxx Refining & Marketing, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 000000
Bankers Trust Company
Xxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxx Refining & Marketing, Inc. ____________________ [notes]
(CUSIP ______________)
Reference is hereby made to the Indenture with respect to the above-
referenced securities, dated as of November 21, 1997 (the "Indenture"), between
Xxxxx Refining & Marketing, Inc., as issuer (the "Company"), and Bankers Trust
Company, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of U.S.
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note
(a) [_] Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global Note. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
C-1
(b) [_] Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [_] Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [_] Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) [_] Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
C-2
(b) [_] Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
___ 144A Global Note, ____ Regulation S Global Note, ___ IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
-----------------------------------
[Insert Name of Owner]
By:
-----------------------------------
Name:
Title:
Dated: ________________, ____
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Xxxxx Refining & Marketing, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 000000
Bankers Trust Company
Xxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxx Refining & Marketing, Inc. ________________________ [notes]
Reference is hereby made to the Indenture with respect to the
above-referenced securities, dated as of November 21, 1997 (the "Indenture"),
between Xxxxx Refining & Marketing, Inc., as issuer (the "Company"), and Bankers
Trust Company, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of U.S. $____________
aggregate principal amount of:
(a) [_] a beneficial interest in a Global Note, or
(b) [_] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or
any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (c) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
D-1
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of transfer
of less than U.S. $250,000, an Opinion of Counsel in form reasonably acceptable
to the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect. We further understand that any
subsequent transfer by us of the Notes or beneficial interest therein acquired
by us must be effected through one of the Placement Agents.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
-----------------------------------
[Insert Name of Owner]
By:
-----------------------------------
Name:
Title:
Dated: ________________, ____
D-2
