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EXHIBIT 4.1
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INDENTURE
Dated as of June 9, 1997
among
UNITED REFINING COMPANY,
as Company,
KIANTONE PIPELINE CORPORATION
KIANTONE PIPELINE COMPANY
UNITED JET CENTER, INC.
UNITED REFINING COMPANY OF PENNSYLVANIA
KWIK FILL, INC.
INDEPENDENT GASOLINE AND OIL COMPANY OF ROCHESTER, INC .
BELL OIL CORP.
PPC, INC.
SUPER TEST PETROLEUM INC.
KWIK-FIL, INC.
VULCAN ASPHALT REFINING COMPANY,
as Subsidiary Guarantors,
and
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
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$200,000,000
10 3/4% Senior Notes due 2007, Series A
10 3/4% Senior Notes due 2007, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1) ................................................ 7.10
(a)(2) ................................................ 7.10
(a)(3) ................................................ N.A.
(a)(4) ................................................ N.A.
(a)(5) ................................................ 7.10
(b) ................................................... 7.10
(c) ................................................... N.A.
311(a) ................................................... 7.11
(b) ................................................... 7.11
(c) ................................................... N.A.
312(a) ................................................... 2.05
(b) ................................................... 11.03
(c) ................................................... 11.03
313(a) ................................................... 7.06
(b)(1) ................................................ 7.06
(b)(2) ................................................ 7.06
(c) ................................................... 7.06; 11.02
(d) ................................................... 7.06
314(a) ................................................... 4.08; 4.10
(b) ................................................... N.A.
(c)(1) ................................................ 4.08; 11.04
(c)(2) ................................................ 13.04
(c)(3) ................................................ 4.08
(d) ................................................... N.A.
(e) ................................................... 11.05
(f) ................................................... N.A.
315(a) ................................................... 7.01(b)
(b) ................................................... 7.05; 11.02
(c) ................................................... 7.01(a)
(d) ................................................... 6.05; 7.01(c)
(e) ................................................... 6.11
316(a)(last sentence) .................................... 2.09
(a)(1)(A) ............................................. 6.05
(a)(1)(B) ............................................. 6.04
(a)(2) ................................................ N.A.
(b) ................................................... 6.07
(c) ................................................... 9.04
317(a)(1) ................................................ 6.08
(a)(2) ................................................ 6.09
(b) ................................................... 2.04
318(a) ................................................... 11.01
(c) ................................................... 11.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions ................................... 1
Section 1.02 Incorporation by Reference of TIA ............. 27
Section 1.03 Rules of Construction ......................... 28
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating ............................... 28
Section 2.02 Execution and Authentication .................. 29
Section 2.03 Registrar and Paying Agent .................... 31
Section 2.04 Paying Agent to Hold Money in
Trust ....................................... 31
Section 2.05 Securityholder Lists .......................... 32
Section 2.06 Transfer and Exchange ......................... 32
Section 2.07 Replacement Securities ........................ 33
Section 2.08 Outstanding Securities ........................ 33
Section 2.09 Treasury Securities ........................... 34
Section 2.10 Temporary Securities .......................... 34
Section 2.11 Cancellation .................................. 35
Section 2.12 Defaulted Interest ............................ 35
Section 2.13 CUSIP Number .................................. 36
Section 2.14 Deposit of Moneys ............................. 36
Section 2.15 Book-Entry Provisions for Global
Securities .................................. 36
Section 2.16 Registration of Transfers and
Exchanges ................................... 37
Section 2.17 Designation ................................... 43
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee ............................ 43
Section 3.02 Selection of Securities to Be
Redeemed .................................... 43
Section 3.03 Notice of Redemption .......................... 44
Section 3.04 Effect of Notice of Redemption ................ 45
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Section 3.05 Deposit of Redemption Price;
Unclaimed Moneys ............................ 45
Section 3.06 Securities Redeemed in Part ................... 46
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities ......................... 46
Section 4.02 Maintenance of Office or Agency ............... 46
Section 4.03 Limitation on Restricted Payments ............. 46
Section 4.04 Limitation on Additional
Indebtedness ................................ 48
Section 4.05 Corporate Existence ........................... 49
Section 4.06 Payment of Taxes and Other Claims ............. 49
Section 4.07 Maintenance of Properties; Insur-
ance; Books and Records ..................... 49
Section 4.08 Compliance Certificate; Notice of
Default ..................................... 50
Section 4.09 Compliance with Laws .......................... 51
Section 4.10 Reports ....................................... 51
Section 4.11 Waiver of Stay, Extension or Usury
Laws ........................................ 52
Section 4.12 Limitation on Transactions with
Affiliates .................................. 52
Section 4.13 Independent Directors ......................... 54
Section 4.14 Limitation on Restrictions on Dis-
tributions from Subsidiaries ................ 54
Section 4.15 Limitation on Liens ........................... 55
Section 4.16 Limitations on Asset Sales .................... 55
Section 4.17 Restrictions on Sale of Capital
Stock of Subsidiaries ....................... 58
Section 4.18 Restrictions on Sale and Leaseback
Transactions ................................ 58
Section 4.19 Additional Subsidiary Guarantees .............. 58
Section 4.20 Change of Control ............................. 59
Section 4.21 Capital Improvements Escrow ................... 62
Section 4.22 Special Offer upon Failure to Con-
summate Capital Improvement
Program ..................................... 63
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 Mergers, Consolidations and Sale
of Assets ................................... 65
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Section 5.02 Successor Corporation Substituted ............. 66
ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default ............................. 67
Section 6.02 Acceleration .................................. 69
Section 6.03 Other Remedies ................................ 69
Section 6.04 Waiver of Past Defaults ....................... 69
Section 6.05 Control by Majority ........................... 70
Section 6.06 Limitation on Suits ........................... 70
Section 6.07 Rights of Holders to Receive
Payment ..................................... 71
Section 6.08 Collection Suit by Trustee .................... 71
Section 6.09 Trustee May File Proofs of Claim .............. 71
Section 6.10 Priorities .................................... 72
Section 6.11 Undertaking for Costs ......................... 73
Section 6.12 Rights and Remedies Cumulative ................ 73
Section 6.13 Delay or Omission Not Waiver .................. 73
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee ............................. 74
Section 7.02 Rights of Trustee ............................. 75
Section 7.03 Individual Rights of Trustee .................. 76
Section 7.04 Trustee's Disclaimer .......................... 77
Section 7.05 Notice of Default ............................. 77
Section 7.06 Reports by Trustee to Holders ................. 78
Section 7.07 Compensation and Indemnity .................... 79
Section 7.08 Replacement of Trustee ........................ 81
Section 7.09 Successor Trustee by Merger, Etc. ............. 81
Section 7.10 Eligibility; Disqualification ................. 81
Section 7.11 Preferential Collection of Claims
Against Company ............................. 81
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01 Termination of Company's
Obligations ................................. 82
Section 8.02 Application of Trust Money .................... 83
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Section 8.03 Repayment to the Company ...................... 84
Section 8.04 Indemnity for Government
Obligations ................................. 84
Section 8.05 Reinstatement ................................. 84
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders .................... 85
Section 9.02 With Consent of Holders ....................... 86
Section 9.03 Compliance with TIA ........................... 88
Section 9.04 Revocation and Effect of Consents ............. 88
Section 9.05 Notation on or Exchange of
Securities .................................. 89
Section 9.06 Trustee to Sign Amendments, Etc. .............. 89
ARTICLE TEN
GUARANTEES
Section 10.01 Unconditional Guarantee ....................... 90
Section 10.02 Severability .................................. 91
Section 10.03 Limitation of Subsidiary Guaran-
tors' Liability ............................. 91
Section 10.04 Contribution .................................. 92
Section 10.05 Waiver of Subrogation ......................... 92
Section 10.06 Execution of Guarantee ........................ 93
Section 10.07 Waiver of Stay, Extension or Usury
Laws ........................................ 93
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 TIA Controls .................................. 94
Section 11.02 Notices ....................................... 94
Section 11.03 Communications by Holders with
Other Holders ............................... 95
Section 11.04 Certificate and Opinion as to Con-
ditions Precedent ........................... 96
Section 11.05 Statements Required in Certificate
or Opinion .................................. 96
Section 11.06 Rules by Trustee, Paying Agent,
Registrar ................................... 97
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Section 11.07 Legal Holidays ................................ 97
Section 11.08 Governing Law ................................. 97
Section 11.09 No Adverse Interpretation of Other
Agreements .................................. 97
Section 11.10 No Recourse Against Others .................... 98
Section 11.11 Successors .................................... 98
Section 11.12 Duplicate Originals ........................... 98
Section 11.13 Severability .................................. 98
Section 11.14 Tax Considerations ............................ 98
Signatures ................................................... 100
Exhibit A - Form of Series A Security
Exhibit B - Form of Series B Security
Exhibit C - Form of Legend for Global Securities
Exhibit D - Transfer Certificate
Exhibit E - Transferee Certificate for Institutional Accred-
ited Investors
Exhibit F - Transferee Certificate for Regulation S
Transfers
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
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INDENTURE dated as of June 9, 1997, among United Refining Company
(the "Company"), Kiantone Pipeline Corporation, Kiantone Pipeline Company,
United Jet Center, Inc., United Refining Company of Pennsylvania, Kwik Fill,
Inc., Independent Gasoline and Oil Company of Rochester, Inc., Bell Oil Corp.,
PPC, Inc., Super Test Petroleum, Inc., Kwik-Fil Inc. and Vulcan Asphalt Refining
Company, as Subsidiary Guarantors, and IBJ Schroder Bank & Trust Company, as
Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 10 3/4%
Senior Notes due 2007, Series A, and 10 3/4% Senior Notes due 2007, Series B, to
be issued in exchange for the 10 3/4% Senior Notes due 2007, Series A, pursuant
to the Registration Rights Agreement and, to provide therefor, the Company and
the Subsidiary Guarantors have duly authorized the execution and delivery of
this Indenture. All things necessary to make the Securities, when duly issued
and executed by the Company and authenticated and delivered hereunder, and the
Guarantees the valid joint and several obligations of the Company and the
Subsidiary Guarantors, respectively, and to make this Indenture a valid and
binding agreement of the Company and each of the Subsidiary Guarantors, have
been done.
The Trustee is entering into this Indenture acting for the benefit
of itself as well as for the benefit of the Holders of the Securities. Each
party hereto agrees as follows for the benefit of each other party and for the
equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means (a) with respect to any Person that
becomes a direct or indirect Subsidiary of the Company after the date of this
Indenture, Indebtedness of such Person and its Subsidiaries existing at the time
such Person becomes a Subsidiary of the Company that was not incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary of
the Company and (b) with respect to the Company or any of its Subsidiaries, any
Indebtedness assumed by the Company or any of its Subsidiaries in connection
with the acquisition of an asset from another Person that was not
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incurred by such other Person in connection with, or in contemplation of, such
acquisition.
"Affiliate" of any Person means any Person (i) which directly or
indirectly controls or is controlled by, or is under direct or indirect common
control with, the referent Person, (ii) which beneficially owns or holds 10% or
more of any class of the Voting Stock of the referent Person or (iii) of which
10% or more of the Voting Stock (or, in the case of a Person which is not a
corporation, 10% or more of the equity interest) is beneficially owned or held
by the referent Person or (iv) with respect to an individual, any immediate
family member of such person. For purposes of this definition, control of a
Person shall mean 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 .
"Affiliate Transaction" has the meaning ascribed to such term in
Section 4.12.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease,
assignment or other disposition to any Person other than the Company or any of
its Subsidiaries (including, without limitation, by means of a Sale and
Leaseback Transaction or a merger or consolidation) (collectively, for purposes
of this definition, a "transfer"), directly or indirectly, in one transaction or
a series of related transactions, of (a) any Capital Stock of any Subsidiary or
(b) any other properties or assets of the Company or any of its Subsidiaries
other than transfers of cash, Cash Equivalents, accounts receivable, inventory
or other properties or assets in the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" shall not include any of the
following: (i) any transfer of properties or assets (including Capital Stock)
that is governed by, and made in accordance with, the provisions described under
Section 5.01; (ii) any transfer of properties or assets to an Unrestricted
Subsidiary, if permitted under Section 4.03; (iii) sales of damaged, worn-out or
obsolete equipment or assets that, in the Company's reasonable judgment, are
either no longer used or useful in he business of the Company or its
Subsidiaries; and (iv) any transfers that, but for this clause (iv), would be
Asset Sales, if after giving effect to such transfers, the aggregate Fair Market
Value of the properties or assets transferred in such transaction or any such
series of related transactions does not exceed $100,000.
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"Attributable Indebtedness" of any Person, when used with respect to
any Sale and Leaseback Transaction, means, as at the time of determination,
property subject to such Sale and Leaseback Transaction and the present value
(discounted at a rate equivalent to Company's then-current weighted average cost
of funds for borrowed money as at the time of determination, compounded on a
semi-annual basis) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in any such Sale and Leaseback
Transaction.
"Bankruptcy Law" means Title 11, U.S. Code or foreign law for the
relief of debtors.
"Board Resolution" means a duly adopted resolution of the Board of
Directors of the Company.
"Business Day" means any day other than a Saturday, Sunday or any
other day on which banking institutions in the City of New York are required or
authorized by law or other governmental action to be closed.
"Capital Improvement Plan" means the Company's plans to expand its
refinery capacity and improve and upgrade its retail network as described in the
Company's Offering Memorandum dated June 4, 1997.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participations or other equivalents of or interests in (however designated) the
equity (including without limitation common stock, preferred stock and
partnership interests) of such Person.
"Capitalized Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Cash Equivalents" means (i) marketable obligations with a maturity
of 180 days or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in support
thereof); (ii) demand and time deposits and certificates of deposit or
acceptances with a maturity of 180 days or
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less of any financial institution that is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than $500
million; (iii) commercial paper maturing no more than 180 days from the date of
creation thereof issued by a corporation that is not an Affiliate of the Company
and is organized under the laws of any state of the United States or the
District of Columbia and rated at least A-1 by S&P or at least P-1 by Moody's;
(iv) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any commercial bank meeting the specifications of clause (ii) above; and
(v) investments in money market or other mutual funds substantially all of whose
assets comprise securities of the types described in clauses (i) through (iv)
above.
"Change of Control" means the occurrence of any of the following:
(i) the consummation of any transaction the result of which is (x) if such
transaction occurs prior to the first sale of Common Equity of the Company
pursuant to a registration statement under the Securities Act that results in at
least 20% of the then outstanding Common Equity of the Company having been sold
to the public, that Permitted Holders beneficially own less than, directly or
indirectly, 51% of the Common Equity of the Company, and (y) if such transaction
occurs thereafter, that any Person or group (as such term is used in Section
13(d)(3) of the Exchange Act) (other than Permitted Holders) owns, directly or
indirectly, a majority of the Common Equity of the Company, (ii) the Company
consolidates with, or merges with or into, another person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
the Company's assets or the assets of Company and its Subsidiaries taken as a
whole to any Person, or any Person consolidates with, or merges with or into,
the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company, as the case may be, is converted into
or exchanged for cash, securities or other property, other than any such
transaction where the outstanding Voting Stock of the Company, as the case may
be, is converted into or exchanged for Voting Stock (other than Disqualified
Stock) of the surviving or transferee corporation and the beneficial owners of
the Voting Stock of the Company immediately prior to such transaction own,
directly or indirectly, not less than a majority of the Voting Stock of the
surviving or transferee corporation immediately after such transaction, (iii)
the Company, either individually or in conjunction with one or more Subsidiaries
sells, assigns, conveys, transfers, leases or otherwise
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disposes of, or the Subsidiaries sell, assign, convey, transfer, lease or
otherwise dispose of, all or substantially all of the properties and assets of
the Company and its Subsidiaries, taken as a whole (either in one transaction or
a series of related transactions), including Capital Stock of the Subsidiaries,
to any Person (other than the Company or a Wholly Owned Subsidiary), or (iv)
during any consecutive two-year period, individuals who at the beginning of such
period constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the stockholders of the Company was approved by either (i) a vote of
two-thirds of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved or (ii) a Permitted Holder) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office.
"Change of Control Offer" has the meaning ascribed to that term in
Section 4.20(a).
"Change of Control Purchase Date" has the meaning ascribed to that
term in Section 4.20(a).
"Change of Control Purchase Notice" has the meaning ascribed to that
term in Section 4.20(a).
"Change of Control Purchase Price" has the meaning ascribed to that
term in Section 4.20(a).
"Commission" means the Securities and Exchange Commission.
"Common Equity" of any Person means all Capital Stock of such Person
that is generally entitled to (i) vote in the election of directors or managing
directors of such Person or (ii) if such Person is not a corporation, vote or
otherwise participate in the selection of the governing body, partners, members,
managers or others that controls the management and policies of such Person.
"Consolidated Amortization Expense" of any Person for any period
means the amortization expense of such Person and its Subsidiaries for such
period (to the extent included in the computation of Consolidated Net Income of
such Person), determined on a consolidated basis in accordance with GAAP.
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"Consolidated Depreciation Expense" of any Person for any period
means the depreciation expense of such Person and its Subsidiaries for such
period (to the extent included in the computation of Consolidated Net Income of
such Person), determined on a consolidated basis in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" of any Person means, with
respect to any determination date, the ratio of (i) EBITDA for such Person's
four full fiscal quarters immediately preceding the determination date, to (ii)
the aggregate Fixed Charges of such Person for such four fiscal quarters. In
making such computations, (i) EBITDA and Fixed Charges shall be calculated on a
pro forma basis assuming that (A) the Indebtedness to be incurred or the
Disqualified Capital Stock to be issued (and all other Indebtedness incurred or
Disqualified Capital Stock issued after the first day of such period of four
full fiscal quarters referred to in the covenant described in paragraph (a)
under Section 4.04 through and including the date of determination), and (if
applicable) the application of the net proceeds therefrom (and from any other
such Indebtedness or Disqualified Capital Stock), including the refinancing of
other Indebtedness, had been incurred on the first day of such four quarter
period and, in the case of Acquired Indebtedness, on the assumption that the
related transaction (whether by means of purchase, merger or otherwise) also had
occurred on such date with the appropriate adjustments with respect to such
acquisition being included in such pro forma calculation and (B) any acquisition
or disposition by the Company or any Subsidiary of any properties or assets
outside the ordinary course of business or any repayment of any principal amount
of any Indebtedness of the Company or any Subsidiary prior to the stated
maturity thereof, in either case since the first day of such period of four full
fiscal quarters through and including the date of determination, had been
consummated on such first day of such four quarter period; (ii) the Fixed
Charges attributable to interest on any Indebtedness required to be computed on
a pro forma basis in accordance with the covenant described in paragraph (a)
under Section 4.04 and (A) bearing a floating interest rate shall be computed as
if the rate in effect on the date of computation had been the applicable rate
for the entire period and (B) which was not outstanding during the period for
which the computation is being made but which bears, at the option of the
Company, a fixed or floating rate of interest, shall be computed by applying, at
the option of the Company, either the fixed or floating rate; (iii) the Fixed
Charges attributable to interest on any Indebtedness under a revolving credit
facility required to be computed on a pro forma basis in
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accordance with the covenant described in paragraph (a) under Section 4.04 shall
be computed based upon the average daily balance of such Indebtedness during the
applicable period, provided that such average daily balance shall be reduced by
the amount of any repayment of Indebtedness under a revolving credit facility
during the applicable period, which repayment permanently reduced the
commitments or amounts available to be reborrowed under such facility, (iv)
notwithstanding the foregoing clauses (ii) and (iii), interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
agreements relating to Hedging Obligations, shall be deemed to have accrued at
the rate per annum resulting after giving effect to the operation of such
agreements; and (v) if after the first day of the applicable four quarter period
the Company has permanently retired any Indebtedness out of the net proceeds of
the issuance and sale of shares of Capital Stock (other than Disqualified
Capital Stock) of the Company within 30 days of such issuance and sale, Fixed
Charges shall be calculated on a pro forma basis as if such Indebtedness had
been retired on the first day of such period.
"Consolidated Income Tax Expense" means, for any Person for any
period, the provision for taxes based on income and profits of such Person and
its Restricted Subsidiaries to the extent such income or profits were included
in computing Consolidated Net Income of such Person for such period.
"Consolidated Interest Expense" means, without duplication, with
respect to any Person for any period, the sum of the interest expense on all
Indebtedness of such Person and its Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP and including, without limitation
(i) imputed interest on Capitalized Lease Obligations and Attributable
Indebtedness, (ii) commissions, discounts and other fees and charges owed with
respect to letters of credit securing financial obligations and bankers'
acceptance financing, (iii) the net costs associated with Hedging Obligations,
(iv) amortization of other financing fees and expenses, (v) the interest portion
of any deferred payment obligations, (vi) amortization of debt discount or
premium, if any, (vii) all other non-cash interest expense, (viii) capitalized
interest, (ix) all interest payable with respect to discontinued operations, and
(x) all interest on any Indebtedness of any other Person guaranteed by the
referent Person or any of its Subsidiaries.
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"Consolidated Net Income" of any Person for any period means the net
income (or loss) of such Person and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP; provided that there shall be
excluded from such net income (to the extent otherwise included therein),
without duplication: (i) the net income (or loss) of any Person (other than a
Subsidiary of the referent Person) in which any Person other than the referent
Person has an ownership interest, except to the extent that any such income has
actually been received by the referent Person or any of its Wholly-Owned
Subsidiaries in the form of cash dividends during such period; (ii) except to
the extent includible in the consolidated net income of the referent Person
pursuant to the foregoing clause (i), the net income (or loss) of any Person
that accrued prior to the date that (a) such Person becomes a Subsidiary of the
referent Person or is merged into or consolidated with the referent Person or
any of its Subsidiaries or (b) the assets of such Person are acquired by the
referent Person or any of its Subsidiaries; (iii) the net income of any
Subsidiary of the referent Person during such period to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
of that income (a) is not permitted by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary during such period or (b)
would be subject to any taxes payable on such dividend or distribution; (iv) any
gain (but not loss), together with any related provisions for taxes on any such
gain, realized during such period by the referent Person or any of its
Subsidiaries upon (a) the acquisition of any securities, or the extinguishment
of any Indebtedness, of the referent Person or any of its Subsidiaries or (b)
any Asset Sale by the referent Person or any of its Subsidiaries; (v) any
extraordinary gain (but not extraordinary loss), together with any related
provision for Taxes on any such extraordinary gain, realized by the referent
Person or any of its Subsidiaries during such period; and (vi) in the case of a
successor to such Person by consolidation, merger or transfer of its assets, any
earnings of the successor prior to such merger, consolidation or transfer of
assets; and provided, further, that any gain referred to in clauses (iv) and (v)
above that is received in cash by the referent Person or one of its Subsidiaries
during such period shall be included in the consolidated net income of the
referent Person.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity
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of the common stockholders of such Person and its consolidated Subsidiaries as
of such date plus (ii) the respective amounts reported on such Person's balance
sheet as of such date with respect to any series of preferred stock (other than
Disqualified Stock) that by its terms is not entitled to this payment of
dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only to the
extent of any cash received by such Person upon issuance of such preferred
stock, less all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of tangible assets of a going concern business made
within 12 months after the acquisition of such business) subsequent to the Issue
Date in the book value of any asset owned by such Person or a Subsidiary of such
Person.
"Consolidated Tangible Assets" of any Person as of any date means
the total assets of such Person and its Subsidiaries (excluding any assets that
would be classified as "intangible assets" under GAAP) on a consolidated basis
at such date, determined in accordance with GAAP, less all write-ups subsequent
to the Issue Date in the book value of any asset owned by such Person or any of
its Restricted Subsidiaries.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or after notice
or the passage of time or both would be, an Event of Default.
"Depository" means, with respect to the Securities issued in the
form of one or more Global Securities, The Depository Trust Company or another
Person designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Disqualified Capital Stock" means any Capital Stock of such Person
or any of its Subsidiaries that, by its terms, by the terms of any agreement
related thereto or by the terms of any security into which it is convertible,
puttable or exchangeable, is, or upon the happening of any event or the passage
of time would be, required to be redeemed or repurchased by such Person or any
of its Subsidiaries, whether or not at the option of the holder thereof, or
matures or is mandatorily redeemable, pursuant to a sinking fund obligation
17
-10-
or otherwise, in whole or in part, on or prior to the final maturity date of the
Senior Notes; provided, however, that any class of Capital Stock of such Person
that, by its terms, authorizes such Person to satisfy in full its obligations
with respect to the payment of dividends or upon maturity, redemption (pursuant
to a sinking fund or otherwise) or repurchase thereof or otherwise by the
delivery of Capital Stock that is not Disqualified Capital Stock, and that is
not convertible, puttable or exchangeable for Disqualified Capital Stock or
Indebtedness, shall not be deemed to be Disqualified Capital Stock so long as
such Person satisfies its obligations with respect thereto solely by the
delivery of Capital Stock that is not Disqualified Capital Stock.
"EBITDA" means, with respect to any Person for any period, without
duplication, the sum of the amounts for such period of (i) Consolidated Net
Income, (ii) Consolidated Income Tax Expense, (iii) Consolidated Amortization
Expense (but only to the extent not included in Fixed Charges), (iv)
Consolidated Depreciation Expense, (v) Fixed Charges, (vi) prepayment or
make-whole payments incurred in connection with the repayment of Indebtedness on
the date of this Indenture and (vii) all other non-cash items reducing the
Consolidated Net Income (excluding any such non-cash charge that results in an
accrual of a reserve for cash charges in any future period) of such Person and
its Subsidiaries, in each case determined on a consolidated basis in accordance
with GAAP (provided, however, that the amounts set forth in clauses (ii) through
(vii) shall be included only to the extent such amounts reduce Consolidated Net
Income), less the aggregate amount of all non-cash items, determined on a
consolidated basis, to the extent such items increase Consolidated Net Income.
"Equity Offering" means an offering or sale of Capital Stock (other
than Disqualified Capital Stock) of the Company pursuant to a registration
statement filed with the Commission in accordance with the Securities Act or
pursuant to an exemption from the registration requirements in accordance with
the Securities Act or pursuant to an exemption from the registration
requirements thereof.
"Escrow Agent" means IBJ Schroder Bank & Trust Company, in its
capacity as Escrow Agent under the Escrow Agreement .
18
-11-
"Escrow Agreement" means the Escrow Agreement dated June 9, 1997, by
and among the Company, the Trustee and the Escrow Agent, as in effect on the
Issue Date.
"Events of Default" has the meaning ascribed to that term in Section
6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Indebtedness" means all of the Indebtedness of the Company
and its Subsidiaries that is outstanding on the Issue Date.
"Fair Market Value" means the fair market value as determined in
good faith by the Board of Directors and evidenced by a Board Resolution.
"Fifth Anniversary" means the fifth anniversary of the later of (i)
the Issue Date and (ii) if an Exchange Offer is consummated within six months of
the Issue Date, the consummation of the Exchange Offer.
"Fixed Charges" means, with respect to any Person for any period,
the sum of (a) the Consolidated Interest Expense of such Person and its
Subsidiaries for such period, and (b) the product of (i) all cash dividend
payments (and non-cash dividend payments in the case of a Person that is a
Subsidiary) on any series of preferred stock of such Person or a Subsidiary of
such Person, times (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state,
local or equivalent foreign statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP.
"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 entity as may be approved by a significant segment of
the accounting profession of the United States, as in effect on the Issue Date.
"Global Security" means a security evidencing all or a part of the
Securities issued to the Depository in accordance
19
-12-
with Section 2.01 and bearing the legend prescribed in Exhibit C.
"Guarantee" has the meaning ascribed to that term in Section 10.01.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any interest rate swap agreement, interest rate collar
agreement or other similar agreement or arrangement relating to interest rates.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered in the register of the Securities maintained by the
Registrar pursuant to Section 2.03.
"Indebtedness" of any Person at any date means, without duplication:
(i) all liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof); (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (iii) all
obligations of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto); (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred by
such Person in the ordinary course of business in connection with obtaining
goods, materials or services, which payable is not overdue by more than 60 days
according to the original terms of sale unless such payable is being contested
in good faith; (v) the maximum fixed repurchase price of all Disqualified
Capital Stock of such Person; (vi) all Capitalized Lease Obligations of such
Person; (vii) all Indebtedness of others secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person; (viii) all
Indebtedness of others guaranteed by such Person to the extent of such
guarantee; provided that Indebtedness of the Company or its Subsidiaries that is
guaranteed by the Company or the Company's Subsidiaries shall only be counted
once in the calculation of the Company and its Subsidiaries on a consolidated
basis; and (ix) all Attributable Indebtedness of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above, the maximum liability
of such Person for any such contingent obligations at such date and, in the case
of clause (vii), the lesser of (A) the fair market
20
-13-
value of any asset subject to a Lien securing the Indebtedness of others on the
date that the Lien attaches and (B) the amount of the Indebtedness secured. For
purposes of the preceding sentence, the "maximum fixed repurchase price" of any
Disqualified Capital Stock that does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock (or any equity security for which it may be exchanged or
converted), such fair market value shall be determined in good faith by the
Board of Directors of such Person, which determination shall be evidenced by a
Board Resolution.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Director" means a director of the Company who has not
and whose Affiliates have not, at any time during the twelve months prior to the
taking of any action hereunder, directly or indirectly, received, or entered
into any understanding or agreement to receive, any compensation, payment or
other benefit, of any type or form, from the Company or any of its Affiliates
other than customary directors fees for serving on the Board of Directors of the
Company or any Affiliate and reimbursement of out-of-pocket expenses for
attendance at the Company's or Affiliate's board and board committee meetings.
On the Issue Date, the Independent Directors are Evan Evans, Douglas Lemmonds,
Andrew Maloney and Dennis Mehiel .
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing in the United States
that is, in the reasonable judgment of the Company's Board of Directors,
qualified to perform the task for which it has been engaged and disinterested
and independent with respect to the Company and its Affiliates.
"Index Amount" means, for any year, an amount equal to the
percentage increase, if any, in the Index as of the end of such year when
compared to the Index in effect that the end of the previous year multiplied by
the applicable amount of total compensation for such year. The "Index" means the
Consumer Price Index for all Urban Consumers (CPI-U), Northeast,
21
-14-
all items, 1982-84=100 published by the Bureau of Labor Statistics of the U.S.
Department of Labor or if at any time such Index is not published, any
substitute index designated by the Company and appropriately adjusted.
"Initial Purchasers" means Dillon, Read & Co. Inc. and Bear, Stearns
& Co. Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 50l(a)(l), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Securities.
"Investments" of any Person means (i) all investments by such Person
in any other Person in the form of loans, advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business) or similar credit extensions
constituting Indebtedness of such Person, and any guarantee of Indebtedness of
any other Person, (ii) all purchases (or other acquisitions for consideration)
by such Person of Indebtedness, Capital Stock or other securities of any other
Person and (iii) all other items that would be classified as investments
(including without limitation purchases of assets outside the ordinary course of
business) on a balance sheet of such Person prepared in accordance with GAAP.
"Issue Date" means the date the Securities are initially issued.
"Lien" means, with respect to any asset or property, any mortgage,
deed of trust, debenture, fiduciary transfer, fiduciary assignment, lien
(statutory or other), pledge, lease, easement, restriction, covenant, charge,
security interest or other encumbrance of any kind or nature in respect of such
asset or property, whether or not filed, recorded or otherwise perfected under
applicable law (including without limitation any conditional sale or other title
retention agreement, and any lease in the nature thereof, any option or other
agreement to sell, and any filing of, or agreement to give, any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Liquidated Damages" has the meaning ascribed to such term in the
Registration Rights Agreement.
22
-15-
"Net Available Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Subsidiary), net of (i) brokerage
commissions and other fees and expenses (including fees and expenses of legal
counsel, accountants and investment banks) related to such Asset Sale, (ii)
provisions for all taxes payable as a result of such Asset Sale (after taking
into account any available tax credits or deductions and any tax sharing
arrangements), (iii) amounts required to be paid to any Person (other than the
Company or any Subsidiary) owning a beneficial interest in the properties or
assets subject to the Asset Sale or having a Lien therein and (iv) appropriate
amounts to be provided by the Company or any Subsidiary, as the case may be, as
a reserve required in accordance with GAAP against any liabilities associated
with such Asset Sale and retained by the Company or any Subsidiary, as the case
may be, after such Asset Sale, including, without limitation, pensions and other
postemployment benefit liabilities, liabilities related to environmental matters
and liabilities under any indemnification obligations associated with such Asset
Sale, all as reflected in an Officers' Certificate delivered to the Trustee;
provided, however, that any amounts remaining after adjustments, revaluations or
liquidations of such reserves shall constitute Net Available Proceeds.
"New Bank Credit Facility" means that certain Credit Agreement dated
as of June 9, 1997 by and among PNC Bank, National Association, as agent, the
banks party thereto, the Company, United Refining Company of Pennsylvania and
Kiantone Pipeline Corporation, as subsequently amended, restated or replaced
from time to time.
"Non-Recourse Purchase Money Indebtedness" means Indebtedness of
Company or any of its Subsidiaries incurred (a) to finance the purchase of any
assets of the Company or any of its Subsidiaries within 90 days of such
purchase, (b) to the extent the amount of Indebtedness thereunder does not
exceed 100% of the purchase cost of such assets, (c) to the extent the purchase
cost of such assets is or should be included in "additions to property, plant
and equipment" in accordance with GAAP, (d) to the extent that such Indebtedness
is non-recourse to the Company or any of its Subsidiaries or any of their
respective assets other than the assets so purchased and (e) to
23
-16-
the extent the purchase of such assets is not part of an acquisition of any
Person.
"Obligations" means all obligations of the Company and the
Subsidiary Guarantors for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities and amounts
payable under this Indenture, the Securities, the Guarantees.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Managing Director, the Chief Executive Officer, the President, any
Vice President, the Chief Financial Officer, the Controller, or the Secretary of
such Person.
"Officers' Certificate" means a certificate signed by two Officers
of the Company or a Subsidiary Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion from legal counsel (who
may be an employee of the Company) which and who are acceptable to the Trustee.
"Parent" means Red Apple Group, Inc.
"Paying Agent" has the meaning ascribed to that term in Section
2.03.
"Payment Restriction", with respect to a Subsidiary of any Person,
means any encumbrance, restriction or limitation, whether by operation of the
terms of its charter or by reason of any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation, on the ability of (i)
such Subsidiary to (a) pay dividends or make other distributions on its Capital
Stock or make payments on any obligation, liability or Indebtedness owed to such
Person or any other Restricted Subsidiary of such Person, (b) make loans or
advances to such Person or any other Subsidiary of such Person or (c) transfer
any of its properties or assets to such Person or any other Subsidiary of such
Person or (ii) such Person or any other Subsidiary of such Person to receive or
retain any such dividends, distributions or payments, loans or advances or
transfer or properties or assets.
"Permitted Holders" means John A. Catsimatidis and his Related
Parties.
24
-17-
"Permitted Indebtedness" means any of the following:
(i) Indebtedness in an aggregate principal amount at any time
outstanding not to exceed 85% of the book value of the eligible accounts
receivable and 60% of inventory of the Company and its Subsidiaries,
calculated on a consolidated basis and in accordance with GAAP;
(ii) Indebtedness under the Senior Notes, the New Senior Notes, the
Subsidiary Guarantees and this Indenture;
(iii) Existing Indebtedness;
(iv) Indebtedness under Hedging Obligations, provided that (1) such
Hedging Obligations are related to payment obligations on Permitted
Indebtedness or Indebtedness otherwise permitted by paragraph (a) of
Section 4.04, and (2) the notional principal amount of such Hedging
Obligations does not exceed the principal amount of such Indebtedness to
which such Hedging Obligations relate;
(v) Indebtedness of the Company to a Subsidiary and Indebtedness of
any Subsidiary to the Company or a Subsidiary; provided, however, that
upon either (1) the subsequent issuance (other than directors' qualifying
shares), sale, transfer or other disposition of any Capital Stock or any
other event which results in any such Subsidiary ceasing to be a
Subsidiary or (2) the transfer or other disposition of any such
Indebtedness (except to the Company or a Subsidiary), the provisions of
this clause (v) shall no longer be applicable to such Indebtedness and
such Indebtedness shall be deemed, in each case, to be incurred and shall
be treated as an incurrence for purposes of paragraph (a) of Section 4.04
at the time the Subsidiary in question ceased to be a Subsidiary or the
time such transfer or other disposition occurred;
(vi) Indebtedness in respect of bid, performance or surety bonds
issued for the account of the Company in the ordinary course of business,
including guarantees or obligations of the Company with respect to letters
of credit supporting such bid, performance or surety obligations (in each
case other than for an obligation for money borrowed);
25
-18-
(vii) Indebtedness in respect of Non-Recourse Purchase Money
Indebtedness incurred by the Company or any Subsidiary; and
(viii) Refinancing Indebtedness.
"Permitted Liens" means: (i) Liens for taxes, assessments or
governmental charges or claims that either (a) are not yet delinquent or (b) are
being contested in good faith by appropriate proceedings and as to which
appropriate reserves or other provisions have been made in accordance with GAAP;
(ii) statutory Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other Liens imposed by law arising in the
ordinary course of business and with respect to amounts that either (a) are not
yet delinquent or (b) are being contested in good faith by appropriate
proceedings and as to which appropriate reserves or other provisions have been
made in accordance with GAAP; (iii) Liens incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security; (iv) Liens incurred
or deposits made to secure the performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, progress payments, government contracts
and other obligations of like nature (exclusive of obligations for the payment
of borrowed money), in each case, incurred in the ordinary course of business;
(v) easements, rights-of-way, restrictions and other similar charges or
encumbrances in respect of real property not interfering with the ordinary
conduct of the business of the Company or any of its Subsidiaries and not
materially affecting the value of the property subject thereto; (vi) leases or
sub-leases granted to others not interfering with the ordinary conduct of the
business of the Company or any of its Subsidiaries and not materially affecting
the value of the property subject thereto; (vii) Liens securing Acquired
Indebtedness, provided that such Liens (x) are not incurred in connection with,
or in contemplation of, the acquisition of the property or assets acquired and
(y) do not extend to or cover any property or assets of the Company or any of
its Restricted Subsidiaries other than the property or assets so acquired;
(viii) Liens securing Refinancing Indebtedness to the extent incurred to repay,
refinance or refund Indebtedness that is secured by Liens and outstanding as of
the date hereof, provided that such Refinancing Indebtedness shall be secured
solely by the assets securing the outstanding Indebtedness being repaid,
refinanced or refunded; (ix) Liens that secure Sale and Leaseback Transactions
that are permitted to be incurred under Sections 4.04 and
26
-19-
4.18; (x) Liens securing Indebtedness between the Company and its Wholly Owned
Subsidiaries or among such Wholly Owned Subsidiaries; (xi) Liens existing on the
Issue Date to the extent and in the manner such Liens are in effect on the Issue
Date (after giving effect to the application of the proceeds of this Offering);
(xii) Liens securing the New Bank Credit Facility; provided that any such Liens
shall not extend to or cover Restricted Inventory of the Company or any of its
Subsidiaries unless on the date such Liens are incurred either (A) (1) the
Company has in effect a rating no lower than B from Standard & Poor's ("S&P"),
(2) the Notes have in effect a rating no lower than B from S&P and (3) the Notes
have in effect a rating no lower than B3 from Moody's, or (B) the Fixed Charge
Coverage Ratio for the four full fiscal quarters immediately preceding the
determination date is no less than 2.25 to 1; (xiii) Liens securing Non-Recourse
Purchase Money Indebtedness, provided, that such Liens extend only to the
property being acquired and such Lien is created within 90 days of the purchase
of such property; and (xiv) Liens securing Indebtedness in an amount not to
exceed $500,000 at any time outstanding.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Petroleum Investment" means an Investment by the Company in an
entity engaged in the business of petroleum refining and/or retail marketing of
refined petroleum products and which is not an Affiliate of the Company.
"Physical Securities" has the meaning ascribed to that term in
Section 2.01.
"Plan of Liquidation", with respect to any Person, means a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise): (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety; and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such Person to Holders of
Capital Stock of such Person.
27
-20-
"Private Placement Legend" means the legend initially set forth on
the Securities in the form set forth on Exhibit A.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act as interpreted by the
Company's Boards of Directors in consultation with its independent certified
public accountants.
"Purchase Agreement" means the purchase agreement dated as of June
4, 1997 by and among the Company and the Initial Purchasers.
"Purchase Date" shall have the meaning ascribed to such term in
Section 4.15(e).
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Record Date" means each of the Record Dates specified in the
Securities; provided that if any such date is not a Business Day, the Record
Date shall be the first day immediately preceding such specified day that is a
Business Day.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Securities.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption, payable in immediately
available funds, pursuant to this Indenture and the Securities.
"Refinancing Indebtedness" means Indebtedness of the Company or a
Subsidiary of the Company issued in exchange for, or the proceeds from the
issuance and sale or disbursement of which are used substantially concurrently
to repay, redeem, refund, refinance, discharge or otherwise retire for value, in
whole or in part (collectively, "repay"), or constituting an amendment,
modification or supplement to or a deferral or renewal of (collectively, an
"amendment"), any Indebtedness of the Company or any of its Subsidiaries
existing immediately after the original issuance of the Securities or incurred
pursuant to the Fixed Charge Coverage Ratio of Section 4.04 in a principal
amount not in excess of the principal amount of the Indebtedness so repaid or
amended or, if such Refinancing
28
-21-
Indebtedness refinances Indebtedness under a revolving credit facility or other
agreement providing a commitment for subsequent borrowings, with a maximum
commitment not to exceed the maximum commitment under such revolving credit
facility or other agreement; provided that: (i) the Refinancing Indebtedness is
the obligation of the same Person, and is subordinated to the Securities, if at
all, to the same extent, as the Indebtedness being repaid or amended; (ii) the
Refinancing Indebtedness is scheduled to mature either (a) no earlier than the
Indebtedness being repaid or amended or (b) after the maturity date of the
Securities; (iii) the portion, if any, of the Refinancing Indebtedness that is
scheduled to mature on or prior to the maturity date of the Securities has a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness is
incurred that is equal to or greater than the Weighted Average Life to Maturity
of the portion of the Indebtedness being repaid that is scheduled to mature on
or prior to the maturity date of the Securities; and (iv) the Refinancing
Indebtedness is secured only to the extent, if at all, and by the assets, that
the Indebtedness being repaid or amended is secured .
"Registered Exchange Offer" means the offer to exchange the Series B
Securities for all of the outstanding Series A Securities in accordance with the
Registration Rights Agreement .
"Registrar" has the meaning ascribed to that term in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of June 9, 1997 by and among the Company, the Subsidiary
Guarantors and the Initial Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Reimbursement Payments" has the meaning ascribed to such term in
Section 4.20(b).
"Related Business Investment" means any Investment directly by the
Company or its Subsidiaries in any business that is closely related to or
complements the business of the Company or its Subsidiaries as such business
exists on the Issue Date.
29
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"Related Party" with respect to any Person means (i) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Person or (ii) any trust,
corporation, partnership or other entity, the beneficiaries, shareholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Person and/or such other Persons referred to
in the immediately preceding clause (i).
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer in the Corporate Trust Department of the Trustee with
direct responsibility for the administration of this Indenture or to whom any
corporate trust matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Restricted Debt Payment" means any purchase, redemption, defeasance
(including without limitation in substance or legal defeasance) or other
acquisition or retirement for value, directly or indirectly, by the Company or a
Subsidiary, prior to the scheduled maturity or prior to any scheduled repayment
of principal or sinking fund payment, as the case may be, in respect of
Subordinated Indebtedness.
"Restricted Inventory" means all of the Company's and its
Subsidiaries' inventory other than inventory and crude oil and asphalt wherever
located in Warren, Pennsylvania.
"Restricted Investment", with respect to any Person, means any
Investment by such Person (other than investments in Cash Equivalents in any
Person that is not a Subsidiary including its Unrestricted Subsidiaries, if any.
"Restricted Payment" means with respect to any Person: (i) the
declaration of any dividend (other than a dividend declared by a Wholly Owned
Restricted Subsidiary to holders of its Common Equity) or the making of any
other payment or distribution of cash, securities or other property or assets in
respect of such Person's Capital Stock (except that a dividend payable solely in
Capital Stock (other than Disqualified Stock) of such Person shall not
constitute a Restricted Payment); (ii) any payment on account of the purchase,
redemption, retirement or other acquisition for value of such Person's Capital
Stock or any other payment or distribution made in respect thereof, either
directly or indirectly (other than a payment solely in Capital Stock that is not
Disqualified Stock); (iii) any Restricted Investment; (iv) any Restricted Debt
Payment; or
30
-23-
(v) any payments under the Servicing Agreement in excess of $1 million per
fiscal year.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
under the Securities Act; provided that the Trustee shall be entitled to request
and conclusively rely upon an Opinion of Counsel with respect to whether any
Security is a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means, with respect to any Person,
an arrangement with any bank, insurance company or other lender or investor or
to which such lender or investor is a party, providing for the leasing by such
Person or any of its Subsidiaries of any property or asset of such Person or any
of its Subsidiaries which has been or is being sold or transferred by such
Person or such Subsidiary 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.
"Securities" means the Series A Securities and the Series B
Securities treated as a single class of securities, as amended or supplemented
from time to time in accordance with the terms hereof, that are issued pursuant
to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended .
"Series A Securities" means the 10 3/4% Senior Notes due 2007,
Series A, of the Company issued pursuant to this Indenture and sold pursuant to
the Purchase Agreement.
"Series B Securities" means the 10 3/4% Senior Notes due 2007,
Series B, of the Company to be issued in exchange for the Series A Securities
pursuant to the Registered Exchange Offer and the Registration Rights Agreement.
"Servicing Agreement" means that certain agreement between Parent
and the Company, to be entered into simultaneously with the consummation of the
Offering, pursuant to which the Company shall pay to Parent for the use of
Parent's New York headquarters, as such agreement may be amended from time to
time, and any agreement concerning the same subject matter between the Company
and John A. Catsimatidis and/or any
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of his Affiliates, whether such agreement is a replacement thereof or in
addition thereto.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the Issue Date, except all references to "10 percent" in such definition shall
be changed to "2 percent".
"Subordinated Indebtedness" means Indebtedness of the Company or any
Subsidiary that is subordinated in right of payment to the Securities or the
Subsidiary Guarantees, respectively.
"Subsidiary" of any Person means (i) any corporation of which at
least a majority of the aggregate voting power of all classes of the Common
Equity is owned by such Person directly or through one or more other
Subsidiaries of such Person and (ii) any entity other than a corporation in
which such Person, directly or indirectly, owns at least a majority of the
Common Equity of such entity other than any such person designated as an
Unrestricted Subsidiary in accordance with the definition of "Unrestricted
Subsidiary".
"Subsidiary Guarantors" means each of Kiantone Pipeline Corporation,
Kiantone Pipeline Company, United Jet Center, Inc., United Refining Company of
Pennsylvania, Kwik Fill, Inc., Independent Gasoline and Oil Company of
Rochester, Inc., Bell Oil Corp., PPC, Inc., Super Test Petroleum, Inc.,
Kwik-Fil, Inc. and Vulcan Asphalt Refining Corporation and each other Person who
is required to become a Subsidiary Guarantor by the terms of this Indenture.
"Successor" has the meaning ascribed to that term in Section
5.01(a).
"Tax Sharing Agreement" means the Tax Sharing Agreement dated the
Issue Date by and among Parent, the Company and certain of their affiliates, as
in effect on the Issue Date and as amended from time to time thereafter;
provided that any such amendment does not increase the liability or decrease the
rights of the Company or any of its Subsidiaries under the Tax Sharing
Agreement.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb), as amended, as in effect on the date
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of the execution of this Indenture until such time as this Indenture is
qualified under the TIA, and thereafter as in effect on the date on which this
Indenture is qualified under the TIA, except as otherwise provided in Section
9.03; provided, however, that in the event the Trust Indenture Act of 1939 is
amended after either such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939, as so amended.
"Trust Moneys" means all cash received by the Trustee in accordance
with the terms of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor .
"Unrestricted Subsidiary" means each of the Subsidiaries of the
Company so designated by a resolution adopted by the Board of Directors of the
Company and whose creditors have no direct or indirect recourse (including
without limitation recourse with respect to the payment of principal of or
interest on Indebtedness of such Subsidiary) to the Company or a Subsidiary;
provided, however, that the Board of Directors of the Company will be prohibited
from designating as an Unrestricted Subsidiary any Subsidiary of the Company
existing on the date of this Indenture. The Board of Directors of the Company
may designate an Unrestricted Subsidiary to be a Restricted Subsidiary, provided
that (i) any such redesignation shall be deemed to be an incurrence by the
Company and its Restricted Subsidiaries of the Indebtedness (if any) of such
redesignated Subsidiary for purposes of Section 4.04 as of the date of such
redesignation and (ii) immediately after giving effect to such redesignation and
the incurrence of any such additional Indebtedness, the Company and its
Restricted Subsidiaries could incur $1 of additional Indebtedness pursuant to
the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.04. Any
such designation or redesignation by the Board of Directors shall be evidenced
to the Trustee by the filing with the Trustee of a certified copy of the Board
Resolution giving effect to such designation or redesignation and an Officers'
Certificate certifying that such designation or redesignation complied with the
foregoing conditions and setting forth the underlying calculations in such
certificate.
"U.S. Government Obligations" means U.S. Legal Tender or direct
non-callable obligations of, or non-callable
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obligations guaranteed by, the United States of America for payment of which
obligation or guarantee the full faith and credit of the United States of
America is pledged.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. Person" means (i) any individual resident in the United
States, (ii) any partnership or corporation organized or incorporated under the
laws of any state of the United States, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate governed by foreign law and
of which at least one executor or administrator is a non-U.S. Person who has
sole or shared investment discretion with respect to its assets), (iv) any trust
of which any trustee is a U.S. Person (other than a trust of which at least one
trustee is a non-U.S. Person who has sole or shared investment discretion with
respect to its assets and no beneficiary of the trust (and no settlor of the
trust if revocable) is a U.S. Person), (v) any agency or branch of a foreign
entity located in the United States, (vi) any non-discretionary or similar
account (other than an estate or trust) held by a dealer or other fiduciary for
the benefit or account of a U.S. Person, (vii) any discretionary or similar
account (other than an estate or trust) held by a dealer or other fiduciary
organized, incorporated or (if an individual) resident in the U.S. (other than
such an account held for the benefit or account of a non-U.S. Person), (viii)
any partnership or corporation organized or incorporated under the laws of a
foreign jurisdiction and formed by a U.S. Person principally for the purpose of
investing in securities not registered under the Securities Act (unless it is
organized or incorporated, and owned, by accredited investors within the
meanings of rule 501(a) under the Securities Act who are not natural Persons,
estates or trusts); provided, however, that the term "U.S. Person" shall not
include (A) a branch or agency of a U.S. Person that is located and operating
outside the U.S. for valid business purposes as a locally regulated branch or
agency engaged in the banking or insurance business, (B) any employee benefit
plan established and administered in accordance with the law, customary
practices and documentation of a foreign country and (C) the international
organizations set forth in Section 902(o)(7) of Regulation S under the
Securities Act and any other similar international organizations, and their
agencies, Affiliates and pension plans.
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"U.S. Physical Securities" has the meaning ascribed to that term in
Section 2.01.
"Voting Stock", with respect to any Person, means securities of any
class of Capital Stock of such Person entitling the Holders thereof (whether at
all times or only so long as no senior class of stock has voting power by reason
of any contingency) to vote in the election of members of the board of directors
of such Person.
"Weighted Average Life to Maturity", when applied to any
Indebtedness at any date, means the number of years obtained by dividing (i) the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly-Owned Subsidiary" of the Company means a Subsidiary, of
which 100% of the Common Equity (except for directors' qualifying shares or
certain minority interests owned by other Persons solely due to local law
requirements that there be more than one stockholder, but which interest is not
in excess of what is required for such purpose) is owned directly by the Company
or through one or more Wholly-Owned Subsidiaries of the Company.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Holder of Securities.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
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"obligor" on the indenture securities means the Company, any
Subsidiary Guarantor or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by reference in the TIA to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Series A Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit A annexed
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Series B Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit B annexed
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements (including
notations relating to the Guarantees)
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required by law, stock exchange rule or usage. The Company and the Trustee shall
approve any notation, legend or endorsement (including notations relating to the
Guarantees) on the Securities. Each Security shall be dated the date of its
authentication .
Securities offered and sold in reliance on Rule 144A, Securities
offered and sold to Institutional Accredited Investors and Securities offered
and sold in reliance on Regulation S shall be issued initially in the form of
one or more permanent Global Securities in registered form, substantially in the
form set forth in Exhibit A, deposited with the Trustee, as custodian for the
Depository, and shall bear the legend set forth on Exhibit C. The aggregate
principal amount of any Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depository, as hereinafter provided.
Securities offered and sold in reliance on any other exemption from
registration under the Securities Act other than as described in the preceding
paragraph shall be issued, and Securities offered and sold in reliance on Rule
144A may be issued, in the form of certificated Securities in registered form in
substantially the form set forth in Exhibit A (the "Physical Securities"). All
Securities offered and sold in reliance on Regulation S shall remain in the form
of a Global Security until the consummation of the Exchange Offer pursuant to
the Registration Rights Agreement; provided, however, that all of the time
period specified in the Registration Rights Agreement to be complied with by the
Company have been so complied with.
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary of the
Company, shall sign, or one Officer shall sign and one Officer or an Assistant
Secretary of the Company (each of whom shall, in each case, have been duly
authorized by all requisite corporate actions) shall attest to, the Securities
for the Company by manual or facsimile signature.
If an Officer or Assistant Secretary of the Company whose signature
is on a Security was an Officer or Assistant Secretary of the Company at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless. Each
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Subsidiary Guarantor shall execute the Guarantee in the manner set forth in
Section 10.06.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Series A Securities for original
issue in the aggregate principal amount not to exceed $200,000,000 and (ii)
Series B Securities from time to time for issue only in exchange for a like
principal amount of Series A Securities, in each case upon a written order of
each of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of Securities to be authenticated, the
series of Securities and the date on which the Securities are to be
authenticated. The aggregate principal amount of Securities outstanding at any
time may not exceed $200,000,000, except as provided in Section 2.07. Upon
receipt of a written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Securities in substitution for
Securities originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise provided
in the appointment, 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 the Trustee to deal with the Company and Affiliates of the
Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof, except as
other denominations may be necessary as a result of a pro rata redemption or
purchase of Securities required by the provisions of this Indenture and the
Securities.
The Company, any Subsidiary Guarantor, the Trustee and any agent of
the Company, any Subsidiary Guarantor or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and (subject to the provisions of
this Indenture and the Securities with respect to
38
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record dates) interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and neither the Company, any Subsidiary
Guarantor, the Trustee nor any agent of the Company, any Subsidiary Guarantor or
the Trustee shall be affected by notice to the contrary.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands in respect of the Securities and this Indenture may be
served. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company, upon written notice to the Trustee, may have
one or more co-Registrars reasonably acceptable to the Trustee. The Company
shall appoint the Trustee as Registrar and Paying Agent until such time as the
Trustee has resigned or a successor has been appointed. Notwithstanding anything
to the contrary in this Indenture, the Paying Agent shall be, at all times, the
Trustee.
To the extent the Company makes such payments directly to the
Holders of the Securities, the Company shall simultaneously notify the Trustee
thereof in writing.
The Paying Agent shall comply with all applicable backup withholding
tax and information reporting requirements under the U.S. Internal Revenue Code
of 1986, as amended, and the Treasury regulations issued thereunder in respect
of any payment on, or in respect of, a Security or under a Guarantee.
SECTION 2.04. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of principal
of or interest on the Securities (whether such money has been paid to it by the
Company or any other obligor on the Securities), and the Company and the Paying
Agent shall notify the Trustee of any default by the Company (or any other
obligor on the Securities) in making any such payment. Money held in trust by
the Paying Agent need not be segregated except as required by law and in no
event shall the Paying Agent be liable for any interest on any money received by
it hereunder. The Company at any time may require
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the Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed and the Trustee may at any time during the continuance of any
Event of Default, upon written request to the Paying Agent, require such Paying
Agent to pay forthwith all money so held by it to the Trustee and to account for
any funds disbursed. Upon making any payment, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.05. Securityholder 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
Holders of the Securities. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee before each Record Date and at such other times as
the Trustee may request in writing a list as of such date and in such form as
the Trustee may reasonably require of the names and addresses of Holders of the
Securities, which list may be conclusively relied upon by the Trustee and the
Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when Securities
are presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized denominations of the same
series, the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or co-Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing.
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Securities at the Registrar's or
co-Registrar's request. No service charge shall be made 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 other governmental charge
payable upon exchanges (without transfer to another Person) pursuant to Section
[2.02, 2.10, 3.06, 4.15, 6.14 or 9.05,] in which event the Company shall be
responsible for
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payment of any such taxes or charges). The Registrar or co-Registrar shall not
be required to register the transfer of or exchange of any Security (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Securities and ending at the close of business on the
day of such mailing, (ii) selected for redemption in whole or in part pursuant
to Article Three, except the unredeemed portion of any Security being redeemed
in part and (iii) between a Record Date and the next succeeding Interest Payment
Date.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Depository
(or its agent), and that ownership of a beneficial interest in a Global Security
shall be required to be reflected in a book-entry system.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate
upon written notice from the Company a replacement Security if the Trustee's
requirements are met. If required by the Trustee or the Company, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment of
both the Company and the Trustee, to protect the Company and the Trustee from
any loss which they may suffer if a Security is replaced. The Company and the
Trustee may charge such Holder for their reasonable, out-of-pocket expenses in
replacing a Security, including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the
Company and is entitled to the benefit of this Indenture.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
Subject to Section 2.09, a Security does not cease to be outstanding
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because either of the Company or any of their Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If on a Redemption Date or the Final Maturity Date the Paying Agent
holds U.S. Legal Tender sufficient to pay all of the principal and interest due
on the Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.
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 either of the Company, any of the Subsidiary Guarantors or any of their
respective Affiliates shall be disregarded, 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 disregarded.
The Trustee may require an Officers' Certificate listing Securities
owned by either of the Company, a Subsidiary Guarantor or any of their
respective Affiliates.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon receipt of
a written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company consider
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate upon receipt of a
42
written order of the Company pursuant to Section 2.02 definitive Securities in
exchange for temporary Securities.
SECTION 2.11. Cancellation.
The Company shall deliver to the Trustee for cancellation any
Securities that the Company may have acquired in any matter whatever. The
Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, unless otherwise directed in writing by the
Company, shall dispose of all Securities surrendered for registration of
transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Securities to replace Securities that they had paid or
delivered to the Trustee for cancellation. If any Subsidiary Guarantor shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities,
it shall pay interest on overdue principal and on overdue installments of
interest (to the extent lawful) (without grace periods) on a subsequent special
record date, which date shall be at least ten Business Days prior to the payment
date, at the rate of 2% per annum in excess of the rate shown on the Securities.
The Company shall fix or cause to be fixed any such special record date and
payment date. The Company shall notify the Trustee in writing of the amount of
defaulted interest to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such defaulted interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
defaulted interest. At least 15 days before any such special record date, the
Company shall mail or cause to be mailed to each Holder a notice that states the
special record date, the payment date and the amount of defaulted interest to be
paid.
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SECTION 2.13. CUSIP Number.
The Company in issuing the Securities will use a "CUSIP" number,
and, if such CUSIP number shall be provided to the Trustee, the Trustee shall
use the CUSIP number in notices of redemption or exchange as a convenience to
Holders of the Securities; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities. The Company shall
promptly notify the Trustee of any change in a CUSIP number.
SECTION 2.14. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each Interest Payment Date
and the Final Maturity Date, the Company shall have either delivered by wire
transfer or check such interest or principal and interest, as the case may be,
to Holders of the Securities at such Holders' registered addresses or deposited
with the Paying Agent in immediately available funds money sufficient to make
cash payments due on such Interest Payment Date or the Final Maturity Date, as
the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders of the Securities on such Interest Payment Date or the
Final Maturity Date, as the case may be. If payment is made directly to Holders,
the Company shall give notice to the Paying Agent and Trustee of such payment.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Exhibit C.
Members of, or participants in, the Depository ("Participants")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification,
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proxy or other authorization furnished by the Depository or impair, as between
the Depository and Participants, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 2.16. In
addition, Physical Securities shall be delivered to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Security and a successor depository is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depository to issue Physical Securities.
(c) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
the Global Securities shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Securities, an equal aggregate principal amount of Physical Securities of
authorized denominations.
(d) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(b) or (c) of this Section 2.15 shall, except as otherwise provided by Section
2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder of Securities
is entitled to take under this Indenture or the Securities.
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SECTION 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Securities. When Physical
Securities are presented to the Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal number of
Physical Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
the requirements under this Indenture as set forth in this Section 2.16 for such
transactions are met; provided, however, that the Physical Securities presented
or surrendered for registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing;
and
(II) in the case of Physical Securities the offer and sale of which
have not been registered under the Securities Act, such Physical
Securities shall be accompanied by the following additional information
and documents, as applicable:
(A) if such Physical Security is being delivered to the
Registrar by the Holder thereof for registration in the name of such
Holder, without transfer, a certification from such Holder to that
effect (in substantially the form of Exhibit D hereto); or
(B) if such Physical Security is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under the
Securities Act, a certification to that effect (in substantially the
form of Exhibit D hereto); or
(C) if such Physical Security is being transferred to an
Institutional Accredited Investor, a certification to that effect
(in substantially the form of Exhibit D hereto) and a Transferee
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Certificate for Institutional Accredited Investors in substantially
the form of Exhibit E hereto; or
(D) if such Physical Security is being transferred in reliance
on Regulation S, a certification to that effect (in substantially
the form of Exhibit D hereto) and a Transferee Certificate for
Regulation S Transfers in substantially the form of Exhibit F hereto
and an Opinion of Counsel reasonably satisfactory to the Company and
addressed to the Company and the Registrar to the effect that such
transfer is in compliance with the Securities Act; or
(E) if such Physical Security is being transferred in reliance
on Rule 144 under the Securities Act, a certification to that effect
(in substantially the form of Exhibit D hereto) and an Opinion of
Counsel reasonably satisfactory to the Company and addressed to the
Company and the Registrar to the effect that such transfer is in
compliance with the Securities Act; or
(F) if such Physical Security is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the
form of Exhibit D hereto) and an Opinion of Counsel reasonably
satisfactory to the Company and addressed to the Company and the
Registrar to the effect that such transfer is in compliance with the
Securities Act.
(b) Restrictions on Exchange of a Physical Security for a Beneficial
Interest in a Global Security. A Physical Security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar of a Physical
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Registrar, together with:
(A) a certification, in substantially the form of Exhibit D hereto,
that such Physical Security is being transferred to a Qualified
Institutional Buyer or an Institutional Accredited Investor; and
(B) written instructions directing the Registrar to make, or to
direct the Depository to make, an endorsement
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on the Global Security to reflect an increase in the aggregate amount
of the Securities represented by the Global Security,
then the Registrar shall cancel such Physical Security and cause, or direct the
Depository to cause, in accordance with the standing instructions and procedures
existing between the Depository and the Registrar, the number of Securities
represented by the Global Security to be increased accordingly. If no Global
Security is then outstanding, the Company shall issue and the Trustee shall upon
written instructions from the Company authenticate a new Global Security in the
appropriate amount.
(c) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depository
therefor.
(d) Transfer of a Beneficial Interest in a Global Security for a
Physical Security.
(i) Any Person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a Physical Security.
Upon receipt by the Registrar of written instructions or such other form
of instructions as is customary for the Depository from the Depository or
its nominee on behalf of any Person having a beneficial interest in a
Global Security and upon receipt by the Trustee of a written order or such
other form of instructions as is customary for the Depository or the
Person designated by the Depository as having such a beneficial interest
containing registration instructions and, in the case of any such
registration of transfer or exchange of a beneficial interest in a Global
Security the offer and sale of which have not been registered under the
Securities Act, the following additional information and documents:
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification from such Person to that effect (in substantially the
form of Exhibit D hereto); or
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(B) if such beneficial interest is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under the
Securities Act, a certification to that effect (in substantially the
form of Exhibit D hereto); or
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, a certification to that effect
(in substantially the form of Exhibit D hereto) and a Transferee
Certificate for Institutional Accredited Investors in substantially
the form of Exhibit E hereto; or
(D) if such beneficial interest is being transferred in
reliance on Regulation S, a certification to that effect (in
substantially the form of Exhibit D hereto) and a Transferee
Certificate for Regulation S Transfers in substantially the form of
Exhibit F hereto and an Opinion of Counsel reasonably satisfactory
to the Company and addressed to the Company and the Registrar to the
effect that such transfer is in compliance with the Securities Act;
or
(E) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act, a certification to
that effect (in substantially the form of Exhibit D hereto) and an
Opinion of Counsel reasonably satisfactory to the Company and
addressed to the Company and the Registrar to the effect that such
transfer is in compliance with the Securities Act; or
(F) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of
the Securities Act, a certification to that effect (in substantially
the form of Exhibit D hereto) and an Opinion of Counsel reasonably
satisfactory to the Company and addressed to the Company and the
Registrar to the effect that such transfer is in compliance with the
Securities Act,
then the Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depository and the
Registrar, the aggregate amount of the Global Security to be reduced and,
following such reduction, the Company will execute and, upon receipt of an
authentication order in the form of an Officers'
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Certificate, the Trustee will authenticate and deliver to the transferee a
Physical Security.
(ii) Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Section 2.16(d) shall be registered in
such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Registrar in writing. The Registrar shall
deliver such Physical Securities to the Persons in whose names such
Physical Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar shall deliver only
Securities that bear the Private Placement Legend unless, and the Trustee is
hereby authorized to deliver Securities without the Private Placement Legend if,
(i) there is delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (ii) such
Security has been sold pursuant to an effective registration statement under the
Securities Act.
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to
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Section 2.15 or this Section 2.16 in accordance with its usual procedures. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.17. Designation.
The Indebtedness evidenced by the Securities and the Guarantees is
hereby irrevocably designated as "senior indebtedness" or such other term
denoting seniority for the purposes of any future Indebtedness of the Company
and the Subsidiary Guarantors which the Company or any Subsidiary Guarantor
makes subordinate to any senior indebtedness or such other term denoting
seniority.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Paragraph 5
of the Securities, it shall notify the Trustee in writing of the Redemption
Date, the Redemption Price and the principal amount of Securities to be
redeemed. The Company shall give notice of redemption to the Trustee at least 45
days but not more than 60 days before the Redemption Date (unless a shorter
notice shall be agreed to by the Trustee in writing), together with an Officers'
Certificate stating that such redemption will comply with the conditions
contained herein.
SECTION 3.02. Selection of Securities to Be Redeemed.
If fewer than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed in compliance with the requirements
of the principal national securities exchange, if any, on which the Securities
are listed or, if the Securities are not listed on a national securities
exchange, on a pro rata basis, by lot or by such method as the Trustee shall
deem fair and appropriate. If the Securities are listed on any national
securities exchange, the Company shall notify the Trustee in writing of the
requirements of such exchange in respect of any redemption. The Trustee shall
make the selection from the Securities outstanding and
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not previously called for redemption and shall promptly notify the Company in
writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations equal to $1,000 may be redeemed only in
whole. The Trustee may select for redemption portions (equal to $1,000 or any
integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption by first
class mail, postage prepaid, to each Holder whose Securities are to be redeemed.
At the Company's written request, the Trustee shall give the notice of
redemption in the name of the Company and at the expense of the Company. Each
notice for redemption shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if
any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities
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in aggregate principal amount equal to the unredeemed portion thereof
will be issued;
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption; and
(8) the Paragraph of the Securities pursuant to which the Securities
are to be redeemed.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price plus accrued interest, if any. Upon surrender to the
Paying Agent, such Securities called for redemption shall be paid at the
Redemption Price (plus accrued and unpaid interest, if any, thereon to the
Redemption Date), but installments of interest, the maturity of which is on or
prior to the Redemption Date, shall be payable to Holders of record at the close
of business on the relevant Record Dates.
SECTION 3.05. Deposit of Redemption Price; Unclaimed Moneys.
On or before 11:00 A.M. on the Redemption Date, the Company shall
deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption
Price plus accrued and unpaid interest, if any, of all Securities to be redeemed
on that date.
If the Company complies with the preceding paragraph, then, unless
the Company defaults in the payment of such Redemption Price plus accrued and
unpaid interest, if any, interest on the Securities to be redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not such
Securities are presented for payment.
If money on deposit with the Trustee or the Paying Agent, as the
case may be, for the payment of principal or interest remains unclaimed for two
years, the Trustee and the Paying Agent will, subject to any applicable law, pay
the money to the Company at Company's request. Thereafter, Holders of Securities
entitled to the money must look to the Company and
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the Subsidiary Guarantors for payment unless an abandoned property law
designates another Person, and all liability of the Trustee and the Paying Agent
with respect to such money shall cease. Any money earned on funds held in trust
by the Trustee or the Paying Agent, if any, shall be remitted to the Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder a new
Security or Securities equal in principal amount to the unredeemed portion of
the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities in the manner provided in the Securities. An installment of principal
of or interest on the Securities shall be considered paid on the date it is due
if the Trustee or Paying Agent holds on that date U.S. Legal Tender designated
for and sufficient to pay the installment.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, the office or agency required under Section 2.03. 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 shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 11.02.
The Company hereby initially designates the corporate trust office of the
Trustee as its office or agency in the Borough of Manhattan, The City of New
York.
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SECTION 4.03. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, make any Restricted Payment (except as permitted
below) if at the time of such Restricted Payment:
(i) a Default or Event of Default shall have occurred and be
continuing or shall occur as a consequence thereof;
(ii) The Company would be unable to incur an additional $1.00 of
Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test
set forth in Section 4.04(a); or
(iii) the amount of such Restricted Payment, when added to the
aggregate amount of all Restricted Payments made after the Issue Date,
exceeds the sum of (A) 50% of the Company's Consolidated Net Income (taken
as one accounting period) from but not including February 28, 1997, to the
end of the Company's most recently ended fiscal quarter for which
financial statements are available at the time of such Restricted Payment
(or, if such aggregate Consolidated Net Income shall be a deficit, minus
100% of such aggregate deficit) plus (B) the net Cash proceeds from the
issuance and sale (other than to a Subsidiary of the Company) after the
Issue Date of the Company's Capital Stock that is not Disqualified Stock,
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 lesser of (x) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any) and (y) the
initial amount of such Restricted Investment plus (D) the amount of
Restricted Investment outstanding in an Unrestricted Subsidiary at the
time such Unrestricted Subsidiary is designated a Subsidiary of the
Company in accordance with the definition of "Unrestricted Subsidiary".
The foregoing provisions will not prohibit: (1) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Indenture; (2) the redemption, repurchase, retirement or other acquisition of
any Capital Stock of the Company in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than
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to a Subsidiary of the Company) of other Capital Stock of the Company, so long
as no default shall have occurred and be continuing, (other than any
Disqualified Capital Stock); (3) the defeasance, redemption, repurchase or other
retirement of Subordinated Indebtedness in exchange for, or out of the proceeds
of, the substantially concurrent issue and sale of (I) the Securities or (II)
Capital Stock of the Company (other than (x) Disqualified Capital Stock, (y)
Capital Stock sold to a Subsidiary of the Company and (z) Capital Stock
purchased with the proceeds of loans from the Company or any of its
Subsidiaries); (4) the making of a Petroleum Investment so long as the amount of
such investment outstanding or committed does not exceed at any time $35.0
million less the amount of cash received upon the disposition of any such
investment or the return of capital thereon; (5) the making of a Related
Business Investment in joint ventures or Unrestricted Subsidiaries out of the
proceeds of the substantially concurrent issue and sale of Capital Stock of the
Company (other than (x) Disqualified Stock, (y) Capital Stock sold to a
Subsidiary of the Company and (z) Capital Stock purchased by members of the
Company's or its Subsidiaries' management with the proceeds of loans from the
Company or any of its Subsidiaries); or (6) Restricted Payments (other than
Restricted Payments or any Restricted Debt Payments) which, when added to the
aggregate amount of Restricted Payments made pursuant to this clause (6) after
the Issue Date, does not exceed $5.0 million. The amounts referred to in clauses
(1), (2) and (5) of this paragraph shall be included as Restricted Payments in
any computation made pursuant to clause (iii) above.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.03 were computed, which calculations
shall be based upon the Company's latest available financial statements.
SECTION 4.04. Limitation on Additional Indebtedness.
(a) The Company will not, and will not permit any of its
Subsidiaries to directly or indirectly, create, incur, assume, guarantee or
otherwise become liable with respect to (collectively, "incur") any Indebtedness
(including without limitation Acquired Indebtedness) and the Company will not
permit any of its Subsidiaries to issue or have outstanding (except if issued to
or owned beneficially and of record by the
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Company or any of its Subsidiaries) any Capital Stock having a preference in
liquidation or with respect to the payment of dividends; provided, that (i) the
Company and its Subsidiaries may incur Permitted Indebtedness and (ii) the
Company may incur Indebtedness, if, after giving effect thereto, the Company's
Consolidated Fixed Charge Ratio on the date thereof would be at least 2.0 to 1,
determined on a pro forma basis as if the incurrence of such additional
Indebtedness and the application of the net proceeds therefrom had occurred at
the beginning of the four-quarter period used to calculate the Company's
Consolidated Fixed Charge Coverage Ratio.
(b) The Company will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness that is expressly subordinated to any
other Indebtedness of the Company or such Subsidiary unless such Indebtedness by
its terms is also expressly made subordinated to the Securities in the case of
the Company or the Company Subsidiary Guarantees, in the case of a Subsidiary.
SECTION 4.05. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and
effect their corporate existence and the corporate, partnership or other
existence of each of the Company's Subsidiaries in accordance with the
respective organizational documents of each Subsidiary and the material rights
(charter and statutory) and franchises of the Company and each of the Company's
Subsidiaries.
SECTION 4.06. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all Taxes levied or
imposed upon them or any of the Subsidiaries or upon their or any of the
Subsidiaries' income, profits or property and (ii) all lawful claims for labor,
materials and supplies which, in each case, if unpaid, might by law become a
Lien upon the property of the Company or any of the Subsidiaries.
SECTION 4.07. Maintenance of Properties; Insurance; Books and Records.
(a) The Company will cause all material properties used in the
conduct of its business or the business of any
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Subsidiary of the Company to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company advantageously conducted at all
times; provided, however, that nothing in this Section 4.07(a) shall prevent the
Company or any Subsidiary of the Company from (i) discontinuing the operation or
maintenance of any of such properties if such discontinuance is, as determined
by the Board of Directors in good faith, desirable in the conduct of the
business of the Company or of any of its Subsidiaries, (ii) making an Asset Sale
that complies with Section 4.16 or (iii) entering into a transaction permitted
by Section 5.01.
(b) The Company shall, and shall cause each of its Subsidiaries to,
keep at all times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the Company to be
responsible to the extent that property of similar character usually is so
insured by corporations similarly situated and owning like properties in
accordance with good business practice.
(c) The Company shall, and shall cause each of its Restricted
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Company and each of its Restricted Subsidiaries, in accordance
with GAAP.
SECTION 4.08. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 90 days after
the close of each fiscal year and 45 days after the close of each fiscal
quarter, an Officers' Certificate (one of which Officers shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Company) stating that a review of the activities of the Company and the
Subsidiary Guarantors has been made under the supervision of the signing
Officers with a view to determining whether the Company and the Subsidiary
Guarantors have kept, observed, performed and fulfilled their obligations under
this Indenture and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge, the Company and the
Subsidiary Guarantors during such preceding fiscal year or fiscal quarter, as
the case may be, have kept, observed, performed and fulfilled each and every
such covenant
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and no Default or Event of Default occurred during such period and at the date
of such certificate no Default or Event of Default has occurred and is
continuing or, if such signers do know of any Default or Event of Default, the
certificate shall describe its status with reasonable particularity. The
Officers' Certificate shall also notify the Trustee should the Company or a
Subsidiary Guarantor elect to change its fiscal year end. For purposes of this
Section 4.08(a), performance by the Company and the Subsidiary Guarantors of
their obligations under this Indenture shall be determined without regard to any
grace period or requirement of notice provided pursuant to the terms of this
Indenture.
(b) The annual financial statements delivered pursuant to Section
4.10 shall be accompanied by a written report of the Company's independent
accountants (who shall be a firm of established national reputation) that in
conducting their audit of such financial statements nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article Four, Five or Six of this Indenture insofar as they relate
to accounting matters or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company shall deliver to the Trustee, within ten days of
becoming aware of any Default or Event of Default in the performance of any
covenant, agreement or condition contained in this Indenture, an Officers'
Certificate specifying the Default or Event of Default and describing its status
with particularity.
SECTION 4.09. Compliance with Laws.
The Company shall comply, and shall cause each of their Subsidiaries
to comply, with all applicable statutes, laws, rules, regulations and orders of,
and all applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
properties, except for such noncompliance as would not, individually or in the
aggregate, have a material adverse effect on the business, condition (financial
or otherwise), properties, assets, results of operations or prospects of the
Company and their Restricted Subsidiaries taken as a whole.
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SECTION 4.10. Reports.
(a) Whether or not required by the rules and regulations of the
Commission, so long as any Securities are outstanding, the Company and the
Subsidiary Guarantors will file with the Commission, to the extent such filings
are accepted by the Commission, and will furnish to the Holders of Senior Notes
all quarterly and annual reports and other information, documents and reports
that would be required to be filed with the Commission pursuant to Section 13 of
the Exchange Act if the Company and the Subsidiary Guarantors were required to
file under such section. In addition, the Company and the Subsidiary Guarantors
will make such information available to prospective purchasers of the
Securities, securities analysts and broker-dealers who request it in writing.
(b) For so long as any Securities remain outstanding, the Company
and the Subsidiary Guarantors will furnish to the Holders and beneficial holders
of Securities and to prospective purchasers of Securities designated by the
Holders of Transfer Restricted Securities (as defined in the Registration Rights
Agreement) and to broker dealers, upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4).
SECTION 4.11. Waiver of Stay, Extension or Usury Laws.
The Company and the Subsidiary Guarantors covenant (to the extent
that they may lawfully do so) that they shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law that would prohibit or
forgive the Company and the Subsidiary Guarantors from paying all or any portion
of the principal of and/or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture, and (to the extent that they may
lawfully do so) the Company and the Subsidiary Guarantors hereby expressly waive
all benefit or advantage of any such law, and covenant that they will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
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SECTION 4.12. Limitation on Transactions with Affiliates.
The Company shall not and shall not permit any of its Subsidiaries
to, directly or indirectly, in one transaction or a series of related
transactions, sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from or enter into
any contract, agreement, understanding, loan advance or guarantee with, or for
the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (i) such Affiliate Transaction is on terms that are no
less favorable to the Company or the relevant Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such Subsidiary
with an unrelated Person and (ii) the Company delivers to the Trustee (a) with
respect to any Affiliate Transaction (or series of related transactions)
involving aggregate payments in excess of $1.0 million but less than $3.0
million, an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above and a Secretary's Certificate which sets forth
and authenticates a resolution that has been adopted by a vote of a majority of
the Independent Directors approving such Affiliate Transaction or, if at the
time fewer than four Independent Directors are then in office, a Secretary's
Certificate which sets forth and authenticates a resolution that has been
adopted unanimously by the Company's Board of Directors and (b) with respect to
any Affiliate Transaction (or series of related transactions) involving
aggregate payments of $3.0 million or more, the certificates described in the
preceding clause (a) and an opinion as to the fairness to the Company or such
Subsidiary from a financial point of view issued by an Independent Financial
Advisor; provided, however, that (w) any employment agreement entered into by
the Company or any of its Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Subsidiary, (x)
transactions exclusively between or among the Company and/or its Subsidiaries,
(y) the payment of up to $1 million per fiscal year pursuant to the Servicing
Agreement and (z) payments to Parent under the Tax Sharing Agreement shall not
be deemed to be Affiliate Transactions. Notwithstanding the foregoing proviso,
the Company shall not and shall not permit any of its Subsidiaries to pay any of
its employees total annual compensation in excess of $250,000 unless (a) such
amount of compensation has been approved by a vote of a majority of the
Independent Directors, or (b) such employee's total annual compensation in
effect on the Issue Date exceeded $250,000. Any increase in total compensation
over and above
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the amount previously approved in the case of clause (a) or the employee's total
annual compensation on the Issue Date in the case of clause (b), shall be
approved by a vote of a majority of the Independent Directors, other than an
increase at the end of any year in the amount of total compensation by an amount
equal to the Index Amount for such year.
SECTION 4.13. Independent Directors.
(a) The Company's Board of Directors shall at all times have at
least four Independent Directors; provided, however, that notwithstanding the
foregoing, if an Independent Director resigns, dies or is terminated for any
reason and the remaining number of Independent Directors is less than four, a
replacement for that Independent Director shall be elected as promptly as
practicable, but in no event later than the date that is six months from the
date of the resignation, death or termination of the Independent Director being
replaced.
(b) After the Issue Date, the election of any new Independent
Directors must be approved by a unanimous vote of the Independent Directors then
in office, provided that only a majority vote of the Independent Directors is
required if at the time there are four or more Independent Directors in office.
The Independent Directors shall approve such new Independent Director unless the
Independent Directors determine that such person does not satisfy the
requirements to serve as an Independent Director under this Indenture or such
person is not able or willing to perform the obligations of the Independent
Directors under this Indenture.
(c) If at any time the number of Independent Directors then in
office is less than two, then until such time as the number of Independent
Directors exceeds two the Company shall not, and shall not permit any of its
Subsidiaries to, engage in any transaction that this Indenture requires be
approved by a vote of the Independent Directors.
(d) Any transaction that this Indenture requires be approved by a
vote of the Independent Directors shall be evidenced by a Secretary's
Certificate setting forth a resolution adopted by at least the requisite number
of Independent Directors, a copy of which shall be delivered to the Trustee,
which resolution shall state that the transaction being approved is not unfair
to the holders of the Securities. The failure to comply with this clause (d)
shall have the effect of the
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Company failing to comply with the requirement in this Indenture to obtain a
vote of the Independent Directors.
SECTION 4.14. Limitations on Restrictions on Distributions from Subsidiaries.
The Company shall not, and shall not permit any of its Subsidiaries
to, create or otherwise cause or suffer to exist or become effective any
consensual Payment Restriction with respect to any of its Subsidiaries, except
for (a) any such Payment Restriction in effect on the Issue Date under the New
Bank Credit Facility or any similar Payment Restriction under any similar bank
credit facility or any replacement thereof, provided that such similar Payment
Restriction is no more restrictive than the Payment Restriction in effect on the
Issue Date under the New Bank Credit Facility, (b) any such Payment Restriction
under any agreement evidencing any Acquired Indebtedness that was permitted to
be incurred pursuant to this Indenture, provided that such Payment Restriction
only applies to assets that were subject to such restriction and encumbrances
prior to the acquisition of such assets by the Company or its Subsidiaries and
(c) any such Payment Restriction arising in connection with Refinancing
Indebtedness; provided that any such Payment Restrictions that arise under such
Refinancing Indebtedness are not, taken as a whole, more restrictive than those
under the agreement creating or evidencing the Indebtedness being refunded or
refinanced.
SECTION 4.15. Limitation on Liens.
The Company shall not, and shall not cause or permit any of the
Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist
any Lien on any property or asset now owned or hereafter acquired, or on any
income or profits therefrom, or assign or convey any right to receive income
therefrom, except Permitted Liens, unless prior thereto or simultaneously
therewith, the Securities are equally and ratably secured; provided that if such
Indebtedness is Subordinated Indebtedness the Lien securing such Indebtedness
shall be junior to the Lien securing the Securities.
SECTION 4.16. Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, consummate any Asset Sale unless (i) the Company or its
Subsidiaries receive consideration at the time of such Asset Sale at least equal
to the Fair Market
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Value of the assets included in such Asset Sale, provided the aggregate Fair
Market Value of the consideration received from an Asset Sale that is not in the
form of cash or Cash Equivalents shall not, when aggregated with the Fair Market
Value of all other non-cash or consideration received by the Company and its
Subsidiaries from all previous Asset Sales since the Issue Date that has not,
prior to such date, been converted into cash or Cash Equivalents, exceed 5% of
the Consolidated Tangible Assets of the Company at the time of such Asset Sale
under consideration and provided, further, that with respect to any Asset Sale
to Affiliates the Company shall receive consideration consisting of not less
than 85% cash or Cash Equivalents and (ii) the Company delivers to the Trustee
an Officers' Certificate certifying that such Asset Sale complies with clause
(i). The amount (without duplication) of any Indebtedness (other than
Subordinated Indebtedness) of the Company or such Subsidiary that is expressly
assumed by the transferee in such Asset Sale and with respect to which the
Company or such Subsidiary, as the case may be, is unconditionally released by
the holder of such Indebtedness, shall be deemed to be cash or Cash Equivalents
for purposes of clause (ii) and shall also be deemed to constitute a repayment
of and a permanent reduction in, the amount of such Indebtedness for purposes of
the following paragraph (b). If at any time any non-cash consideration received
by the Company or any Subsidiary of the Company, as the case may be, in
connection with any Asset Sale is converted into or sold or otherwise disposed
of for cash (other than interest received with respect to any such non-cash
consideration), then the date of such conversion or disposition shall be deemed
to constitute the date of an Asset Sale hereunder and the Net Available Proceeds
thereof shall be applied in accordance with this Section 4.16. A transfer of
assets by the Company to a Subsidiary or by a Subsidiary to the Company or to a
Subsidiary will not be deemed to be an Asset Sale and a transfer of assets that
constitutes a Restricted Investment and that is permitted under Section 4.03
will not be deemed to be an Asset Sale.
In the event of the transfer of substantially all (but not all) of
the property and assets of the Company and its Subsidiaries as an entirety to a
Person in a transaction permitted under Section 5.01 the successor corporation
shall be deemed to have sold the properties and assets of the Company and its
Subsidiaries not so transferred for purposes of this covenant, and shall comply
with the provisions of this covenant with respect to such deemed sale as if it
were an Asset Sale. In addition, the Fair Market Value of such properties and
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assets of the Company or its Subsidiaries deemed to be sold shall be deemed to
be Net Available Proceeds for purposes of this covenant.
(b) If the Company or any Subsidiary engages in an Asset Sale, the
Company or such Subsidiary may either, no later than 270 days after such Asset
Sale, (i) apply all or any of the Net Available Proceeds therefrom to repay
amounts outstanding under the New Bank Credit Facility or any other Indebtedness
(other than Subordinated Indebtedness) of the Company or any Subsidiary;
provided, in each case, that the related loan commitment (if any) is thereby
permanently reduced by the amount of such Indebtedness so repaid or (ii) invest
all or any part of the Net Available Proceeds thereof in properties and assets
that replace the properties or assets that were the subject of such Asset Sale
or in other properties or assets that will be used in the business of the
Company and its Subsidiaries as it existed on the Issue Date. The amount of such
Net Available Proceeds not applied or invested as provided in this paragraph
will constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals or exceeds
$5.0 million, the Company will be required to make an offer to purchase, from
all Holders of the Senior Notes, an aggregate principal amount of Senior Notes
equal to such Excess Proceeds as follows:
(i) The Company will make an offer to purchase (a "Net Proceeds
Offer") from all Holders of the Securities the maximum principal amount
(expressed as a multiple of $1,000) of Securities that may be purchased
out of the amount (the "Payment Amount") of such Excess Proceeds.
(ii) The offer prices for the Securities will be payable in cash in
an amount equal to 100% of the principal amount of the Securities tendered
pursuant to a Net Proceeds Offer, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date such Net Proceeds Offer is
consummated (the "Offered Price"). To the extent that the aggregated
Offered Price of Securities tendered pursuant to a Net Proceeds Offer is
less than the Payment Amount relating thereto (such shortfall constituting
a "Net Proceeds Deficiency"), the Company may use such Net Proceeds
Deficiency, or a portion thereof, for general corporate purposes, subject
to the limitations of Section 4.03.
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(iii) If the aggregate Offered Price of Securities validly tendered
and not withdrawn by Holders thereof exceeds the Payment Amount,
Securities to be purchased will be selected on a pro rata basis.
(iv) Upon completion of such Net Proceeds Offer, the amount of
Excess Proceeds remaining shall be zero.
The Company will not permit any Subsidiary to enter into or suffer
to exist any agreement that would place any restriction of any kind (other than
pursuant to law or regulation) on the ability of the Company to make a Net
Proceeds Offer following any Asset Sale. The Company will comply with Rule 14e-l
under the Exchange Act and any other securities laws and regulations thereunder,
if applicable, in the event that an Asset Sale occurs and the Company is
required to purchase Senior Notes as described above.
SECTION 4.17. Restrictions on Sale of Capital Stock of Subsidiaries.
The Company shall not, and shall not permit any Subsidiary to, sell
or otherwise dispose of any of the Capital Stock of any Subsidiary unless: (i)
(a) the Company shall retain ownership, directly or indirectly, of more than 50%
of the Common Equity of such Subsidiary or (b) all of the Capital Stock of such
Subsidiary shall be sold or otherwise disposed of; and (ii) the Net Available
Proceeds from any such sale or disposition are applied or otherwise treated in a
manner consistent with the provisions described in Section 4.16.
SECTION 4.18. Restrictions on Sale and Leaseback Transactions.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, enter into, renew or extend any Sale and Leaseback
Transaction unless: (i) the Company or such Subsidiary would be entitled, under
Section 4.04 and Section 4.19 to incur Indebtedness in an amount equal to the
Attributable Indebtedness with respect to such Sale and Leaseback Transaction,
(ii) such Sale and Leaseback Transaction would not result in a violation of
Section 4.18; and (iii) the Net Available Proceeds from any such Sale and
Leaseback Transaction are applied in a manner consistent with the provisions
described in Section 4.18.
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SECTION 4.19. Additional Subsidiary Guarantees.
If the Company or any of its Subsidiaries shall acquire or create
another Subsidiary, then, unless such newly acquired or created Subsidiary will
be required to execute a Subsidiary Guarantee, in accordance with the terms of
this Indenture, unless it has been been designated as an Unrestricted
Subsidiary.
SECTION 4.20. Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall be
obligated to make an offer to all Holders of Securities to purchase (a "Change
of Control Offer") all outstanding Securities and will purchase, on a business
day not more than 60 days nor less than 30 days after the occurrence of the
Change of Control (such purchase date being the "change of Control Purchase
Date"), all Securities properly tendered pursuant to such offer to purchase for
a cash price (the "Change of Control Purchase Price") equal to 101% of the
principal amount of the Senior notes, plus accrued and unpaid interest, if any,
to the Change of Control Purchase Date.
(b) In order to effect a Change of Control Offer, the Company shall
within 30 days after the occurrence of the Change of Control mail the Trustee
who shall mail to each Holder of Securities (with a copy to the Trustee), a copy
of the Change of Control Offer. The Change of Control Offer shall remain open
from the time of mailing for at least 20 Business Days and until the close of
business on the third Business Day prior to the Change of Control Purchase Date.
The notice, which shall govern the terms of the Change of Control Offer, shall
include such disclosures as are required by law and shall state:
(i) the date of such Change of Control and, briefly, the events
causing such Change of Control;
(ii) that the Change of Control Offer is being made pursuant to this
Section 4.20 and that all Securities tendered in the Change of Control
Offer will be accepted for payment;
(iii) the Change of Control Purchase Price for each Security, the
date on which the Securities shall be purchased (such purchase date being
the "Change of Control Purchase Date"), the last date on which the Change
of
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Control Purchase Notice must be given, the date on which the Change of
Control Offer expires and the names and addresses of any Paying Agent and
the offices or agencies maintained by the Company for such purpose in The
City of New York;
(iv) that any Security not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(v) that, unless the Company shall default in the payment of the
Change of Control Purchase Price, any Security accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Purchase Date;
(vi) that Holders electing to have Securities purchased pursuant to
a Change of Control Offer will be required to surrender their Securities
to the Paying Agent at the address specified in the notice prior to 5:00
p. m., New York City time, on the third Business Day immediately preceding
the Change of Control Purchase Date and, except in the case of a Global
Security, must complete any form letter of transmittal (the "Change of
Control Purchase Notice") proposed by the Company and acceptable to the
Trustee and the Paying Agent;
(vii) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than 5:00 p.m., New York City time,
on the Business Day immediately preceding the Change of Control Purchase
Date, a telex or facsimile transmission (confirmed by overnight delivery
of the original thereof) or letter setting forth the name of the Holder,
the principal amount of Securities the Holder delivered for purchase, the
Security certificate number (if any) and a statement that such Holder is
withdrawing his election to have such Securities purchased;
(viii) that Holders whose Securities are purchased only in part will
be issued Securities equal in principal amount to the unpurchased portion
of the Securities surrendered;
(ix) the instructions that Holders must follow in order to tender
their Securities and the procedures for withdrawing a Change in Control
Purchase Notice; and
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(x) the most recent annual and quarterly reports of the Company and
the Subsidiary Guarantors filed with the Commission pursuant to the
Exchange Act (or, if the Company and the Subsidiary Guarantors are not
required to file any such reports with the Commission, the comparable
reports prepared pursuant to Section 4.10), a description of material
developments in the Company's business, information with respect to pro
forma historical financial information after giving effect to such Change
of Control and such other information concerning the circumstances and
relevant facts regarding such Change of Control and Change of Control
Offer as would be material to a Holder of Securities in connection with
the decision of such Holder as to whether or not it should tender
Securities pursuant to the Change of Control Offer, including, but not
limited to, the events causing such Change of Control and the date such
Change of Control is deemed to have occurred.
(c) On the Change of Control Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent money in United
States dollars, in immediately available funds, sufficient to pay the Change of
Control Purchase Price of all Securities or portions thereof so tendered and
accepted (including any Additional Amounts or Reimbursement Payments payable in
respect thereof) and (iii) deliver to the Trustee the Securities so accepted
together with an Officers' Certificate setting forth the Securities or portions
thereof tendered to and accepted for payment by the Company. The Paying Agent
shall promptly disburse or deliver to the Holders of Securities so accepted
payment in an amount equal to such Change of Control Purchase Price, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Security equal in principal amount to any unpurchased portion of each Security
surrendered. Any Securities not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer not later than the first
Business Day following the Change of Control Purchase Date.
(d) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other securities laws
or regulations, in connection with the repurchase of Securities pursuant to a
Change of Control Offer. To the extent that the provisions of any
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securities laws or regulations conflict with the provisions of this Section
4.20, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations under
this Section 4.20 by virtue thereof.
For purposes of this Section 4.20, the Trustee shall act as Paying
Agent.
Prior to the commencement of a Change of Control Offer, the Company
shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel
(to the extent matters of law are involved) stating that all conditions
precedent to such Change of Control Offer have been complied with.
SECTION 4.21. Capital Improvements Escrow.
(a) On the Issue Date, the Company will deposit into an account (the
"Collateral Account") with the Escrow Agent $48.1 million of the net proceeds of
the offering of the Notes. The amount deposited in the Collateral Account shall
be invested and released in accordance with the provisions of the Escrow
Agreement.
(b) In order to secure the full and punctual payment and performance
of the Company's obligation to offer to purchase Notes in the event a Special
Offer is required to be made in accordance with Section 4.22, the Company hereby
grants to the Trustee, for its benefit and for the benefit of the Holders, a
first priority and continuing security interest in and to all of the right,
title and interest of the Company in, to and under the Collateral Account and
all cash and Cash Equivalents from time to time on deposit therein and credited
thereto, whether now owned or existing or hereafter acquired or arising (such
amounts collectively, the "Escrow Funds").
(c) The Escrow Agent shall hold the Escrow Funds, for the benefit of
the Trustee and the Holders, until the earlier to occur of:
(i) the date on which all amounts deposited in or credited to the
Collateral Account are released in accordance with the terms
of the Escrow Agreement; or
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(ii) the Special Offer Purchase Date, as specified in an Officers'
Certificate from the Company to the Trustee in accordance with
Section 4.22.
(d) On the date on which all of the Escrow Funds are released from
the Collateral Account in accordance with the terms of the Escrow Agreement, the
security interest granted to the Trustee and the Holders in the Collateral
Account shall automatically terminate.
(e) On the Special Offer Purchase Date as specified in an Officers'
Certificate delivered pursuant to Section 4.22, the Escrow Agent shall apply the
Escrow Funds in accordance with Section 4.22 and the security interest in the
Collateral Account granted to the Trustee and the Holders shall terminate on and
as of such Special Offer Purchase Date.
(f) Any amounts remaining in the Collateral Account on the Special
Offer Purchase Date after application of the Escrow Funds as specified in
Section 4.22 shall be paid by the Escrow Agent to the Company.
(g) The Company will comply with Sections 314(b) and 314(d) of the
TIA, as applicable, including, without limitation, providing an Opinion of
Counsel with respect to Section 3.14(b) and the certificates or opinions of
counsel with respect to Section 3.14(d), in connection with the deposit and
release of the Escrow Funds.
SECTION 4.22. Special Offer upon Failure to Consummate Capital Improvement
Program.
(a) If the Capital Improvement Plan is abandoned by the Company
because its completion is no longer possible, practical or economical, as
determined by the Board of Directors of the Company and evidenced by a Board
Resolution, or not completed on or before August 31, 1999, then, 30 days after
the earlier of (i) written notice from an Officer of the Company, and a
certified copy of the Board Resolution, is received by the Trustee regarding the
abandonment of the Capital Improvement Plan or (ii) August 31, 1999 (as the case
may be, the "Special Offer Notice Date"), the Company will be obligated to make
an offer to purchase (the "Special Offer") an aggregate principal amount of
Securities equal to $34.8 million less any amount previously released from the
Escrow Funds to be applied to the Capital Improvement Plan (the "Special Offer
Amount") for a purchase price of 100% of the principal amount of the
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Securities, plus accrued and unpaid interest to the date of purchase (the
"Special Offer Purchase Date").
(b) On the Special Offer Notice Date, the Company shall mail to each
Holder of Securities at such Holder's registered address a notice stating: (i)
that the Capital Improvement Plan has been abandoned or not completed and that
the Company is offering to purchase the specified aggregate principal amount of
Securities at a purchase price in cash equal to 100% of the aggregate principal
amount thereof, plus accrued and unpaid interest to the Special Offer Purchase
Date, which shall be a business day, specified in such notice, that is not
earlier than 30 days or later than 60 days from the date such notice is mailed,
(ii) the amount of accrued and unpaid interest as of the Special Offer Purchase
Date, (iii) that any Security not tendered will continue to accrue interest,
(iv) that, unless the Company defaults in the payment of the purchase price for
the Securities payable pursuant to the Special Offer, any Securities accepted
for payment pursuant to the Special Offer shall cease to accrue interest on and
after the Special Offer Purchase Date, (v) the procedures, consistent with this
Indenture, to be followed by a holder of Securities in order to accept a Special
Offer or to withdraw such acceptance, and (vi) such other information as may be
required by this Indenture and applicable laws and regulations.
(c) On the Special Offer Purchase Date, the Company will (i) accept
for payment the aggregate principal amount of Securities covered by the Special
Offer or such lesser amount as is tendered pursuant to the Special Offer and
(ii) deliver or cause to be delivered to the Trustee all Securities tendered
pursuant to the Special Offer and accepted for payment and the Special Offer
Amount of the Escrow Funds will be applied to consummate the Special Offer. If
less than all Securities tendered pursuant to the Special Offer are accepted for
payment by the Company for any reason consistent with this Indenture, selection
of the Securities to be purchased by the Company shall be in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not so listed, on a pro rata
basis, 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 multiplies of $1,000. The Paying Agent shall promptly mail to each
holder of Securities or portions thereof accepted for payment an amount equal to
the purchase price for such Securities including any accrued and unpaid interest
thereon, and the Trustee
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shall promptly authenticate and mail to such Holder of Securities accepted for
payment in part a new Security equal in principal amount to any unpurchased
portion of the Securities, and any Security not accepted for payment in whole or
in part for any reason consistent with this Indenture shall be promptly returned
to the Holder of such Security. On and after the Special Offer Purchase Date,
interest will cease to accrue on the Securities or portions thereof accepted for
payment, unless the Company defaults in the payment of the purchase price
therefor. The Company will announce the results of the Special Offer to Holders
of the Securities on or as soon as practicable after the Special Offer Purchase
Date.
(d) The Company will comply with the applicable tender offer rules,
including the requirements of Rule 14e-1 under the Exchange Act, and all other
applicable securities laws and regulations in connection with any Special Offer.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations and Sale of Assets.
(a) The Company shall not, in a single transaction or a series of
related transactions, (i) consolidate or merge with or into (other than a merger
with a Wholly-Owned Subsidiary solely for the purpose of changing the Company's
jurisdiction of incorporation to one of the States of the United States), or
sell, lease, convey or otherwise dispose of or assign all or substantially all
of the assets of the Company and its Subsidiaries (taken as a whole), or assign
any of its obligations under the Securities or this Indenture, to any Person or
(ii) adopt a Plan of Liquidation unless, in either case: (a) the Person formed
by or surviving such consolidation or merger (if other than the Company) or to
which such sale, lease, conveyance or other disposition or assignment shall be
made (or, in the case of a Plan of Liquidation, any Person to which assets are
transferred) (collectively, the "Successor") is a corporation organized and
existing under the laws of the United States or any State thereof or the
District of Columbia and the Successor assumes by supplemental indenture in a
form satisfactory to the Trustee all of the obligations of the Company under the
Securities and this Indenture; (b) immediately prior to and immediately after
giving effect to such
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transaction and the assumption of the obligations as set forth in clause (a)
above and the incurrence of any Indebtedness to be incurred in connection
therewith, no Default or Event of Default shall have occurred and be continuing;
(c) immediately after and giving effect to such transaction and the assumption
of the obligations set forth in clause (a) above and the incurrence of any
Indebtedness to be incurred in connection therewith, and the use of any net
proceeds therefrom on a pro forma basis, (1) the Consolidated Net Worth of the
Company or the Successor, as the case may be, would be at least equal to the
Consolidated Net Worth of the Company immediately prior to such transaction and
(2) the Company or the Successor, as the case may be, could incur at least $1.00
of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage
Ratio test set forth in Section 4.04(a); and (d) each Subsidiary Guarantor,
unless it is the other party to the transactions described above, shall have by
amendment to its Guarantee confirmed that its Guarantee of the Securities shall
apply to the obligations of the Company or the Successor under the Securities
and this Indenture. For purposes of this Section 5.01, any Indebtedness of the
Successor which was not Indebtedness of the Company immediately prior to the
transaction shall be deemed to have been incurred in connection with such
transaction.
The Company shall give the Trustee an Officer's Certificate and if a
supplemental indenture is required, a legal opinion that the merger,
consolidation, or sale of assets contemplated in this Section 5.01 complies with
this Indenture.
SECTION 5.02. Successor Corporation Substituted.
Upon any such consolidation, merger, conveyance, lease or transfer
in accordance with the foregoing, the Successor formed by such consolidation or
into which the Company is merged or to which such conveyance, lease or transfer
is made will succeed to, and be substituted for, and may exercise every right
and power of, the Company entering into or making such consolidation, merger,
conveyance, lease or transfer under this Indenture with the same effect as if
such Successor had been named as the Company herein, and thereafter (except in
the case of a sale, assignment, transfer, lease, conveyance or other
disposition) the predecessor corporation will be relieved of all further
obligations and covenants under this Indenture, the Securities and the
Registration Rights Agreement. For all purposes of this Indenture and the
Securities (including the provisions of this Article Five and Article Four),
Subsidiaries of any Successor will, upon such transaction or series of
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transactions, become Subsidiaries or Unrestricted Subsidiaries as provided
pursuant to definition of Unrestricted Subsidiary and all Indebtedness, and all
Liens on property or assets, of the Company and the Subsidiaries immediately
prior to such transaction or series of transactions will be deemed to have been
incurred upon such transaction or series of transactions.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
The following are "Events of Default" under this Indenture:
(i) failure by the Company to pay interest on any of the Securities
when it becomes due and payable and the continuance on any such failure
for 30 days; or
(ii) failure by the Company to pay the principal or premium, if any,
on any of the Securities when it becomes due and payable, whether at
stated maturity, upon redemption, upon acceleration or otherwise; or
(iii) the Company shall fail to comply with any of its agreements or
covenants in Section 4.13, 4.16 or 4.20; or
(iv) failure by the Company to comply with any other covenant in
this Indenture and continuance of such failure for 30 days after notice of
such failure has been given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% of the aggregate
principal amount of the Securities then outstanding; or
(v) failure by the Company or any of their Subsidiaries to make any
payment after the expiration of any applicable grace period in respect of
any Indebtedness of the Company or any of such Subsidiaries that has an
aggregate outstanding principal amount of $5.0 million or more; or
(vi) a default under any Indebtedness of either of the Company or
any Subsidiary of an Company, whether such Indebtedness now exists or
hereafter shall be created, if
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(A) such default results in the holder or holders of such Indebtedness
causing the Indebtedness to become due prior to its stated maturity and
(B) the outstanding principal amount of such Indebtedness, together with
the outstanding principal amount of any other such Indebtedness the
maturity of which has been so accelerated, aggregate $5.0 million or more
at any one time; or
(vii) one or more final judgments or orders that exceed $5.0 million
in the aggregate for the payment of money have been entered by a court or
courts of competent jurisdiction against the Company or any Subsidiary of
either of the Company and such judgment or judgments have not been
satisfied, stayed, annulled or rescinded within 60 days of being entered;
or
(viii) except as permitted by this Indenture, any Subsidiary
Guarantee ceases to be in full force and effect or any Subsidiary
Guarantor repudiates its obligations under any Guarantee; or
(ix) the Company or any Subsidiary Guarantor (a) admits in writing
its inability to pay its debts generally as they become due, (b) commences
a voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (c) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (d) consents to the appointment of a Custodian (as defined
below) of it or for substantially all of its property, (e) consents to or
acquiesces in the institution of a bankruptcy or an insolvency proceeding
against it, (f) makes a general assignment for the benefit of its
creditors or (g) takes any partnership or corporate action, as the case
may be, to authorize or effect any of the foregoing; or
(x) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any Subsidiary Guarantor in
an involuntary case or proceeding under any Bankruptcy Law, which shall
(a) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of an Company or any
Subsidiary Guarantor, (b) appoint a Custodian of the Company or a
Subsidiary Guarantor or for substantially all of any of their property or
(c) order the winding-up or liquidation of its affairs; and such
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judgment, decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
For purposes of this Article Six: the term "Custodian" means any
receiver, interim receiver, receiver and manager, trustee, assignee, liquidator,
sequestrator or similar official charged with maintaining possession or control
over property for one or more creditors, whether under any Bankruptcy Law or
otherwise.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (x) or (xi)) shall have occurred and be continuing under this Indenture,
the Trustee, by written notice to the Company, or the Holders of at least 25% in
the aggregate principal amount of the Securities then outstanding by written
notice to the Company and Trustee may declare all amounts owing under the
Securities to be due and payable immediately. Upon such declaration of
acceleration, the aggregate principal amount of, premium, if any, and interest
on the outstanding Securities shall immediately become due and payable. If an
Event of Default specified in clause (x) or (xi) above with respect to Company
occurs and is continuing, then the principal amount of, premium, if any, and
accrued interest on, all the Securities 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 of Securities.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
(and, at the direction of the Holders of a majority of the aggregate principal
amount of outstanding Securities, subject to Section 7.02(f), shall) pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Securities or to enforce the performance of any
provision of the Securities, this Indenture, or the Guarantees.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee, or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All
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available remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of not less than a
majority in aggregate principal amount of the outstanding Securities may on
behalf of the Holders of all the Securities waive any past Defaults under this
Indenture, except a Default in the payment of the principal of, premium, if any,
or interest on any Security. The Company shall deliver to the Trustee an
Officers' Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents upon which the
Trustee may conclusively rely.
SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount of the
outstanding Securities may 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 it hereunder. Subject to Section 7.01, however, the Trustee
may refuse to follow any direction that the Trustee reasonably believes
conflicts with any law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of another Holder of Securities, or that may
involve the Trustee in personal liability; provided that the Trustee may take
any other action deemed proper by it which is not inconsistent with such
direction; and provided further, that this provision shall not affect the rights
of the Trustee set forth in Section 7.01(d).
In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
from the Company satisfactory to it in its sole discretion against any loss,
liability, cost or expense caused by taking such action or following such
direction.
SECTION 6.06. Limitation on Suits.
A Holder of Securities may not pursue any remedy with respect to
this Indenture, the Guarantees or the Securities unless:
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(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holder or Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity or security satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity or security; and
(5) during such 60-day period the Holder or Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder of Securities may not use this Indenture to prejudice the
rights of another Holder of Securities or to obtain a preference or priority
over such other Holder of Securities.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of or premium, if any, and interest
on a Security, on or after the respective due dates expressed in such Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in clause (i) or (ii) of Section
6.01 occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company or any other obligor on
the Securities for the whole amount of principal, accrued interest and other
amounts remaining unpaid, together with interest on overdue principal and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the
Securities and
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such further amount as shall be sufficient to cover the costs and expenses of
collection, including the compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the compensation, expenses, legal fees,
disbursements and advances of the Trustee, and its agents, nominees, custodians
and counsel, and any other amounts due to the Trustee under Section 7.07) and
the Holders of Securities allowed in any judicial proceedings relating to the
Company and the Subsidiary Guarantors, their creditors or their property and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings is hereby authorized by each
Holder of Securities 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
of Securities, to pay to the Trustee any amount due to it for the compensation,
expenses, legal fees, disbursements and advances of the Trustee and its agents,
nominees, custodians and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of
Securities 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 of Securities in any
such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders of Securities are forced to proceed against
the Company or a Subsidiary Guarantor or any other obligor on the
Securities directly without the Trustee, to such Holders for their
collection costs;
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Third: to Holders of Securities for amounts due and unpaid on the
Securities for interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
interest;
Fourth: to Holders of Securities for amounts due and unpaid on the
Securities for principal, ratably, without preference or priority of any
kind, according to amounts due and payable on the Securities for
principal; and
Fifth: to the Company or the Subsidiary Guarantors, as their
respective interests may appear.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Holders of Securities pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder of Securities pursuant to Section 6.07, or a suit by a Holder or Holders
of more than 10% in principal amount of the outstanding Securities.
SECTION 6.12. Rights and Remedies Cumulative.
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 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.
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SECTION 6.13. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
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. Every right and remedy given by this Article VI 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.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default actually known to a Responsible Officer
(except in the case of Sections 7.05 and 7.06, as used in this Article Seven,
"Trustee" shall mean the Trustee in its capacity as Trustee under this
Indenture) has occurred and is continuing, 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 his own affairs. Subject to such provisions,
the Trustee shall be under no obligation to exercise any of its rights or powers
under this Indenture at the request of any Holder of Securities, unless such
Holder shall have offered to the Trustee security and indemnity satisfactory to
it.
(b) Except during the continuance of an Event of Default actually
known to a Responsible Officer:
(1) The Trustee need perform only those duties as are specifically
set forth herein and no others and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions and such
other documents furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee
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shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture or the Security
Documents.
(c) The Trustee may not be relieved from liability for its own
grossly negligent action, its own grossly negligent failure to act, or its own
willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Trustee unless it is proved
that the Trustee was grossly negligent in ascertaining the pertinent
facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.02 or 6.05.
(d) 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 to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
of Securities if it shall have grounds for believing that repayment of such
funds is not assured to it or it does not receive an indemnity satisfactory to
it in its sole discretion against such risk, liability, loss, fee or expense
which might be incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to this Section 7.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
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SECTION 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both, which shall conform
to the provisions of Section 11.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion.
(c) The Trustee may act through its attorneys, agents, custodians
and nominees and shall not be responsible for the misconduct or negligence of
any attorney, agent, custodian or nominee (other than such a Person who is an
employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers.
(e) The Trustee may consult with counsel and the advice or opinion
of such counsel as to matters of law shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture or the Security Documents at the
request, order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby.
(g) The Trustee shall not be deemed to have notice or knowledge of
any matter, including any Default or Event of Default, unless a Responsible
Officer has actual knowledge thereof or unless written notice thereof is
received by the Trustee at its Corporate Trust Department and such notice
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references the Securities generally, the Company or this Indenture.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may make loans to, accept deposits from or
perform services for and may otherwise deal with either of the Company, any of
their Subsidiaries or any of their respective Affiliates with the same rights it
would have if it were not Trustee. However, the Trustee is subject to the
provisions of Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture, it shall not be accountable
for the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company or the Subsidiary Guarantors in
this Indenture, the Securities, the Security Documents or any document issued in
connection with the sale of Securities or any statement in the Securities other
than the Trustee's certificate of authentication. The Trustee makes no
representations with respect to and shall not be responsible for the
effectiveness or adequacy of this Indenture. The Trustee shall not be
responsible for independently ascertaining or maintaining such validity, if any,
and shall be fully protected in relying upon certificates and opinions delivered
to it in accordance with the terms of this Indenture.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and a
Responsible Officer receives actual notice of such event, the Trustee shall mail
to each Holder of Securities, as their names and addresses appear on the list of
Holders of Securities described in Section 2.05, notice of the uncured Default
or Event of Default within 30 days after the Trustee receives such notice.
Except in the case of a Default or an Event of Default in payment of principal
amount, premium, if any, or interest on, any Security, including the failure to
make payment on (i) any Change of Control Purchase Date pursuant to a Change of
Control Offer or (ii) any Purchase Date pursuant to an Offer to Purchase, the
Trustee may withhold the notice if and so long as the board of directors, the
executive committee, or a trust committee of directors, of the Trustee in
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good faith determines that withholding the notice is in the interest of the
Holders of Securities.
SECTION 7.06. Reports by Trustee to Holders.
This Section 7.06 shall not be operative as a part of this Indenture
until this Indenture is qualified under the TIA, and, until such qualification,
this Indenture shall be construed as if this Section 7.06 were not contained
herein.
Within 60 days after each May 15 of each year beginning with 1998,
the Trustee shall, to the extent that any of the events described in TIA
ss.313(a) occurred within the previous twelve months, but not otherwise, mail to
each Holder of Securities a brief report dated as of such date that complies
with TIA ss. 313(a). The Trustee also shall comply with TIA ss.ss. 313(b),
313(c) and 313(d).
A copy of each report at the time of its mailing to Holders of
Securities shall be mailed to the Company and filed with the Commission and each
securities exchange, if any, on which the Securities are listed.
The Company shall notify a Responsible Officer of the Trustee if the
Securities become listed on any securities exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time compensation
for its acceptance of this Indenture and its services hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
disbursements, expenses and advances (including fees and expenses of counsel)
incurred or made by it in addition to the compensation for its services, except
any such disbursements, expenses and advances as may be attributable to the
Trustee's gross negligence, bad faith or willful misconduct. Such expenses shall
include the reasonable compensation, legal fees, disbursements and expenses of
the Trustee's agents, accountants, experts, nominees, custodians and counsel and
any taxes or other expenses incurred by a trust created pursuant to Section 8.01
hereof.
The Company shall indemnify the Trustee, its directors, officers and
employees and each predecessor trustee for,
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and hold it harmless against, any loss, liability or expense incurred by the
Trustee without gross negligence, bad faith or willful misconduct on its or
their part arising out of or in connection with the administration of this trust
and the Trustee's duties under this Indenture, including the reasonable expenses
and attorneys' fees of defending themselves against any claim of liability
arising hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. However, the
failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense (and may employ its own counsel) at the Company's
expense. The Company need not pay for any settlement made without their written
consent, which consent shall not be unreasonably withheld or delayed. The
Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee as a result of the violation of this Indenture
by the Trustee if such violation arose from the gross negligence, bad faith or
willful misconduct of the Trustee.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a senior Lien prior to the Securities against all money
or property held or collected by the Trustee, in its capacity as Trustee, other
than money held in trust to pay principal of and interest on particular
Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in clause (xi), (xii) or (xiii) of Section 6.01 occurs, the
expenses (including the reasonable fees and expenses of its agents and counsel)
and the compensation for the services shall be preferred over the status of the
Holders in a proceeding under any Bankruptcy Law and are intended to constitute
expenses of administration under any Bankruptcy Law. The Company's obligations
under this Section 7.07 and any claim arising hereunder shall survive the
resignation or removal of any Trustee, the discharge of the Company's
obligations pursuant to Article Eight, any rejection or termination under any
Bankruptcy Law and the termination of this Indenture.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time (subject to the further
provisions of this Section 7.08) by so notifying the Company in writing. The
Holders of a majority in principal
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amount of the outstanding Securities may remove the Trustee by so notifying the
Company and the Trustee in writing and may appoint a successor trustee with the
Company's consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes legally incapable of acting with respect to
its duties hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of
Securities of such event and shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in
principal amount of the Securities may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture; provided, however, that no Trustee under this Indenture shall be
liable for any act or omission of any successor Trustee. A successor Trustee
shall mail notice of its succession to each Holder of Securities.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction
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for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee and the Company shall pay to any such replaced
or removed Trustee all amounts owed under Section 7.07 upon such replacement or
removal.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee. 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 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA ss.ss. 310(a)(l) and 310(a)(5). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b); provided, however, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities,
or certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in TIA ss.
310(b)(l) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee, in its capacity as Trustee hereunder, shall comply with
TIA ss. 311(a), excluding any creditor relationship listed in TIA ss. 311(b). A
Trustee who has resigned or been removed shall be subject to TIA ss. 311(a) to
the extent indicated.
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ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 7.07 and the Trustee's and Paying Agent's
obligations under Section 8.03 shall survive) when all outstanding Securities
theretofore authenticated and issued have been delivered (other than destroyed,
lost or stolen Securities that have been replaced or paid) to the Trustee for
cancellation and the Company have paid all sums payable hereunder.
The Company, at its option, (i) will be discharged from any and all
obligations with respect to the Securities (except for certain obligations of
the Company to register the transfer or exchange of such Securities, replace
stolen, lost or mutilated Securities, maintain paying agencies and holding
moneys for payment in trust) or (ii) need not comply with certain of the
restricted covenants with respect to this Indenture, if the Company deposits
with the Trustee, in trust, U.S. Legal Tender or U.S. Government Obligations or
a combination thereof that, through the payment of interest and premium thereon
and principal amount at maturity in respect thereof in accordance with their
terms, will be sufficient to pay all the principal amount at maturity of and
interest and premium on the Securities on the dates such payments are due in
accordance with the terms of such Securities as well as the Trustee's fees and
expenses if the Company delivers to the Trustee:
(A) an Opinion of Counsel and in connection with a discharge
pursuant to clause (i) above, a private letter ruling issued to the Company by
the Internal Revenue Service (the "service"), to the effect that the holders of
the Securities will not recognize income, gain or loss for federal income tax
purposes as a result of the deposit and related defeasance and will be subject
to federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been exercised;
(B) subject to certain customary qualifications, an Opinion of
Counsel to the effect that funds so deposited will not be subject to avoidance
under applicable Bankruptcy Law; and
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(C) an Officers' Certificate and an Opinion of Counsel to the effect
that the Company has complied with all conditions precedent to the defeasance.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (A) above need not be delivered if all Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable on the maturity date within one year or (iii) are to
be called for redemption within one year under arrangement satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company. Immediately after such event, or after the
expiration of the period of time referred to in the opinion of counsel referred
to in clause (v) above; this Indenture shall cease to be of further effect, and
the Trustee, on demand of the Company, shall execute proper instruments
acknowledging confirmation of and discharge under this Indenture.
However, the Company's obligations in Sections 2.03, 2.04, 2.05,
2.06, 2.07, 2.10, 2.12, 2.13, 4.01, 4.02 and 6.07 and Article Seven and the
Company's, the Trustee's and Paying Agent's obligations in Section 8.03 shall
survive until the Securities are no longer outstanding. Thereafter, only the
Company's obligations in Section 7.07 and the Trustee's and Paying Agent's
obligations in Section 8.03 and 8.04 shall survive. Nothing contained in this
Article Eight shall abrogate any of the rights, obligations or duties of the
Trustee under this Indenture and the Security Documents.
After such irrevocable deposit made pursuant to this Section 8.01
and satisfaction of the other conditions set forth herein, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under this Indenture except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal
amount of, premium, if any, or interest on the Securities, the U.S. Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option.
SECTION 8.02. Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the
Company shall hold in trust money or U.S. Government
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Obligations deposited with it pursuant to Section 8.01. It shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of principal
amount of, premium, if any, and interest on the Securities.
SECTION 8.03. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the Company
upon delivery of an Officer's Certificate stating that such payment does not
violate the terms of this Indenture any excess money or securities held by them
or if deposited with the Trustee by any Subsidiary Guarantor, to such Subsidiary
Guarantor at any time.
The Trustee and the Paying Agent shall pay to the Company or any
Subsidiary Guarantor, as the case may be, upon delivery of an Officer's
Certificate stating that such payment does not violate the terms of this
Indenture any money held by them for the payment of principal, premium, if any,
or interest that remains unclaimed for two years after the date upon which such
payment shall have become due; provided, however, that the Company shall have
either caused notice of such payment to be mailed to each Holder entitled
thereto no less than 30 days prior to such repayment or within such period shall
have published such notice in a financial newspaper of widespread circulation
published in the City of New York. After payment to the Company, Holders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
SECTION 8.04. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
SECTION 8.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
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application, then and only then the Company's and each Subsidiary Guarantor's,
if any, obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had been made pursuant to this Indenture until
such time as the Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; provided, however, that if the
Company or the Subsidiary Guarantors, as the case may be, have made any payment
of principal amount of, premium, if any, or interest on any Securities because
of the reinstatement of their obligations, the Company or the Subsidiary
Guarantors, as the case may be, shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and the Subsidiary Guarantors (when authorized by Board
Resolutions), and the Trustee, together, may amend or supplement this Indenture,
the Securities and the Guarantees, without notice to or consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency provided that
such amendment or supplement does not, in the opinion of the Trustee,
adversely affect the rights of any Holder;
(2) to evidence the succession in accordance with Article Five
hereof of another Person to a Company or a Subsidiary Guarantor and the
assumption by any such successor of the covenants of a Company or a
Subsidiary Guarantor herein and in the Securities or a Guarantee, as the
case may be;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to make any other change that does not adversely affect the
rights of any Holders of Securities hereunder or thereunder;
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(5) to mortgage, pledge or grant a security interest in favor of the
Trustee as additional security for the payment and performance of
obligations under this Indenture, the Securities and the Guarantees;
(6) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(7) to add or release any Subsidiary Guarantor strictly in
accordance with another provision of this Indenture expressly providing
for such addition or release;
provided that each of the Company and the Subsidiary Guarantors party thereto
has delivered to the Trustee an Opinion of Counsel and an Officers' Certificate,
each stating that such amendment or supplement complies with the provisions of
this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and the Subsidiary Guarantors
(when authorized by Board Resolutions) and the Trustee, together, with the
written consent (which may include consents obtained in connection with a tender
offer or exchange offer for Securities) of the Holder or Holders of at least a
majority in aggregate principal amount of the outstanding Securities, may amend
or supplement this Indenture, the Securities or the Guarantees without notice to
any other Holders of Securities. Subject to Section 6.07, the Holder or Holders
of a majority in aggregate principal amount of the outstanding Securities may by
written consent (which may include consents obtained in connection with a tender
offer for Securities) waive any existing Default (other than any continuing
Default or Event of Default in the payment of the principal amount of, premium,
if any, or interest on Securities) under, or compliance by the Company with any
provision of, this Indenture or the Securities without notice to any other
Holder of Securities.
Without the consent of each Holder of Securities affected no such
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may:
(1) change the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver
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of any provision of this Indenture, the Securities, the Guarantees;
(2) reduce the rate or change the time for payment of interest,
including default interest, on any Security;
(3) reduce the principal amount of any Security;
(4) change the Final Maturity Date of any Security, affect the terms
of any scheduled payment of interest on or principal of the Securities, or
alter the redemption provisions contained in this Indenture or the
Securities in any manner adverse to any Holder;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Security on or after the due date thereof or to bring suit to enforce
such payment, or permitting Holders of a majority in principal amount of
the Securities to waive Defaults or Events of Default;
(6) make any changes in Section 6.04, 6.07 or this Section 9.02;
(7) make the principal of, or the interest on any Security payable
in money other than as provided for in this Indenture, the Securities and
the Guarantees as in effect on the date hereof;
(8) make any changes in the provisions described in Section 4.20 or
in the obligations of the Company to make a Net Proceeds Offer or Special
Offer or the definitions related thereto that could adversely affect the
rights of any Holder of the Securities; or
(9) take any action that would subordinate the Securities or the
Subsidiary Guarantees to any other Indebtedness of the Company or any of
its Subsidiaries, respectively, or otherwise affect the ranking of the
Securities or the Subsidiary Guarantees.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
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After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of Securities affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03. Compliance with TIA.
From the date on which this Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture, the Security Documents,
the Securities or the Guarantees shall comply with the TIA as then in effect and
to the extent applicable thereto.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder of Securities is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of his Security by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Securities have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders of Securities entitled to consent to
any amendment, supplement or waiver, which record date shall be at least 30 days
prior to the first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders of Securities at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
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After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (9) of Section 9.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security; provided that any such waiver shall
not impair or affect the right of any Holder to receive payment of principal of
and interest on a Security, on or after the respective due dates expressed in
such Security, or to bring suit for the enforcement of any such payment on or
after such respective dates without the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
SECTION 9.06. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver to any
agreement authorized pursuant to this Article Nine; provided that (i) the form
of any amendment, supplement or waiver with respect to the matters referred to
in clauses (1) through (9) of Section 9.02 shall be satisfactory to the Trustee
and (ii) the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects its own rights, duties or
immunities under this Indenture or the Security Documents. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel and an Officers' Certificate of the Company each stating, in addition to
the matters set forth in Section 11.04, that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture and constitutes the legal, valid and binding
obligations of the Company, the Subsidiary Guarantors or the Pledgors, as the
case may be, enforceable in accordance with its terms. Such Opinion of Counsel
shall be at the expense of the Company, and the Trustee shall have a Lien under
Section 7.07 for any such expense.
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ARTICLE TEN
GUARANTEES
SECTION 10.01. Unconditional Guarantee.
Each Subsidiary Guarantor, jointly and severally, hereby
unconditionally guarantees (such guarantee to be referred to herein as a
"Guarantee") to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns that: (i) the
principal amount of, premium, if any, and interest on the Securities will be
promptly paid in full when due, subject to any applicable grace period, whether
at maturity, by acceleration or otherwise and interest on the overdue principal
and interest on any overdue interest, to the extent lawful, of the Securities
and all other Obligations of the Company to the Holders of the Securities or the
Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Securities or of any such other
Obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, subject to any applicable
grace period, whether at stated maturity, by acceleration or otherwise, subject,
however, in the case of clauses (i) and (ii) above, to the limitations set forth
in Section 10.03. Each Subsidiary Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, and action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and in this Guarantee.
If any Holder of the Securities or the Trustee is required by any court or
otherwise to return to the Company or any Subsidiary Guarantor, or any
custodian, trustee, liquidator or other similar official
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acting in relation to the Company or any Subsidiary Guarantor, any amount paid
by the Company or any Subsidiary Guarantor to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Subsidiary Guarantor further agrees that, as between each
Subsidiary Guarantor, on the one hand, and the Holders of the Securities and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration against the Company in respect of the obligations guaranteed
hereby, and (y) in the event of any acceleration of such obligations as provided
in Article Six, such obligations (whether or not due and payable) shall
forthwith become due and payable by each Subsidiary Guarantor for the purpose of
this Guarantee.
SECTION 10.02. Severability.
In case any provision of this Article Ten or any Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability of
the remaining provisions hereof or thereof shall not in any way be affected or
impaired thereby.
SECTION 10.03. Limitation of Subsidiary Guarantors' Liability.
It is the intention of all parties hereto that the guarantee by each
Subsidiary Guarantor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of any Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
Federal, state or foreign law. To effectuate the foregoing intention, the
Holders of Securities and each Subsidiary Guarantor incorporated in one of the
States of the United States hereby irrevocably agree that the obligations of
such Subsidiary Guarantor under its Guarantee shall be limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Guarantee or pursuant to Section 10.04, result in the obligations of such
Subsidiary Guarantor under its Guarantee not constituting such fraudulent
transfer or conveyance.
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SECTION 10.04. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Subsidiary Guarantor") under its Guarantee, such Funding Subsidiary
Guarantor shall be entitled to a contribution from all other Subsidiary
Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined
below) of each Subsidiary Guarantor (including the Funding Subsidiary Guarantor)
for all payments, damages and expenses incurred by that Funding Subsidiary
Guarantor in discharging the Company's obligations with respect to the
Securities or any other Subsidiary Guarantor's obligations with respect to its
Guarantee. "Adjusted Net Assets" of such Subsidiary Guarantor at any date shall
mean the lesser of (x) the amount by which the fair value of the property of
such Subsidiary Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date (other than
liabilities of such Subsidiary Guarantor under Indebtedness subordinated to such
Subsidiary Guarantor's Guarantee)), but excluding liabilities under the
Guarantee, of such Subsidiary Guarantor at such date and (y) the amount by which
the present fair salable value of the assets of such Subsidiary Guarantor at
such date exceeds the amount that will be required to pay the probable liability
of such Subsidiary Guarantor on its debts (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date and after
giving effect to any collection from any Subsidiary of such Subsidiary Guarantor
in respect of the obligations of such Subsidiary under its Guarantee, if any),
excluding debt in respect of the Guarantee of such Subsidiary Guarantor, as they
become absolute and matured.
SECTION 10.05. Waiver of Subrogation.
Until all Guarantee Obligations are paid in full, each Subsidiary
Guarantor hereby irrevocably waives any claims or other rights which it may now
or hereafter acquire against the Company that arise from the existence, payment,
performance or enforcement of such Subsidiary Guarantor's obligations under its
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder of Securities against the
Company, whether or not such claim, remedy or right arises in equity, or under
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contract, statute or common law, including, without limitation, the right to
take or receive from the Company, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to any Subsidiary
Guarantor in violation of the preceding sentence and the Securities shall not
have been paid in full, such amount shall have been deemed to have been paid to
such Subsidiary Guarantor for the benefit of, and held in trust for the benefit
of, the Holders of the Securities, and shall forthwith be paid to the Trustee
for the benefit of such Holders to be credited and applied upon the Securities,
whether matured or unmatured, in accordance with the terms of this Indenture.
Each Subsidiary Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 10.05 is knowingly made in contemplation of
such benefits.
SECTION 10.06. Execution of Guarantee.
To evidence its guarantee to the Holders of Securities set forth in
this Article Ten, each Subsidiary Guarantor hereby agrees to execute its
Guarantee in substantially the form included in the Securities, which shall be
endorsed on each Security ordered to be authenticated and delivered by the
Trustee. Each Subsidiary Guarantor hereby agrees that its Guarantee set forth in
this Article Ten shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Guarantee. Each such
Guarantee shall be signed on behalf of each Subsidiary Guarantor by two
Officers. Such signatures upon the Guarantee may be by manual or facsimile
signature of such officers and may be imprinted or otherwise reproduced on the
Guarantee, and in case any such officer who shall have signed the Guarantee
shall cease to be such officer before the Security on which such Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Security nevertheless may be authenticated and delivered
or disposed of as though the Person who signed the Guarantee had not ceased to
be such officer of the Subsidiary Guarantor.
SECTION 10.07. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury
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law or other law that would prohibit or forgive each such Subsidiary Guarantor
from performing its Guarantee as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
such Subsidiary Guarantor hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 11.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telecopier or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
if to the Company or any Subsidiary Guarantor:
United Refining Company
15 Bradley Street
Warren, Pennsylvania 10365
Attention: Myron L. Turfitt
Facsimile: (814) 723-4371
Telephone: (814) 723-4655
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if to the Trustee:
IBJ Schroder Bank & Trust Company
1 State Street
New York, New York 10004
Attention: Corporate Trust Department
Facsimile: (212) 858-2952
Telephone: (212) 858-2815
Each of the Company, the Subsidiary Guarantors and the Trustee by
written notice to each other such Person may designate additional or different
addresses for notices to such Person. Any notice or communication to the
Company, the Subsidiary Guarantors and the Trustee shall be deemed to have been
given or made as of the date so delivered if personally delivered; when receipt
is acknowledged, if telecopied; and five (5) calendar days after mailing if sent
by registered or certified mail, postage prepaid (except that a notice of change
of address shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Holder of Securities shall
be mailed to him by first-class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other Holders of
Securities. If a notice or communication is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders with Other Holders.
Holders of Securities may communicate pursuant to TIA ss.312(b) with
other Holders of Securities with respect to their rights under this Indenture,
the Securities or the Guarantees. The Company, the Trustee, the Registrar and
any other Person shall have the protection of TIA ss.312(c).
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SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company, a Subsidiary
Guarantor or a Pledgor to the Trustee to take any action under this Indenture,
the Company, such Subsidiary Guarantor or such Pledgor, as the case may be,
shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.08, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
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SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee, Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 11.07. Legal Holidays.
If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day with the same force and effect as if
made on such payment date.
SECTION 11.08. Governing Law.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each of the parties hereto agrees to
submit to the nonexclusive jurisdiction of the courts of the State of New York
and the U.S. Federal Courts sitting in the City of New York for the purposes of
any suit, action or proceeding arising out of or relating to this Indenture. The
Company and the Subsidiary Guarantors hereby designate and appoint CT
Corporation System, 1633 Broadway, New York, New York 10019, as its agent to
receive on its behalf service of all process in any proceedings in any court
sitting in New York, New York, such service being hereby acknowledged by the
Company and Subsidiary Guarantors to be effective and binding service in every
respect. A copy of any such process so served shall be mailed by registered mail
to the Company and Subsidiary Guarantors, at their respective address specified
in Section 11.02 hereof, except that unless otherwise provided by applicable
law, any failure to mail such copy shall not affect the validity of service of
process. If any agent appointed by the Company and Subsidiary Guarantors refuses
to accept service, the Company and Subsidiary Guarantors hereby agree that
service upon them by mail shall constitute sufficient notice. Nothing herein
shall affect the right to serve process in any other manner permitted by law or
shall limit the right of the Trustee to bring proceedings against the Company
and Subsidiary Guarantors in the courts of any other jurisdiction.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of any of the Company or any
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of its Subsidiaries. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A director, officer, employee, its direct or indirect stockholder or
incorporator, as such, of the Company or any of its Subsidiaries, shall not have
any liability for any obligations of the Company or the Subsidiary Guarantors
under the Securities, this Indenture or the Guarantees or for any claim based
on, in respect of or by reason of such obligations or their creations. Each
Holder of Securities 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.
SECTION 11.11. Successors.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture, the Securities and the Guarantees shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy or counterpart shall be an original, but all of them together shall
represent the same agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture, in the
Securities or in the Guarantees shall be held invalid, illegal or unenforceable,
in any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 11.14. Tax Considerations.
It is the intention of the parties hereto that for U.S. Federal,
state and local income tax purposes: (i) neither the Holders nor the Trustee
shall be at any time the owner of the Collateral for U.S. Federal, state or
local tax purposes
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and (ii) the arrangement created hereby is intended solely to be a security
arrangement and not a trust and neither the Trustee nor the Holders shall file
any returns, reports or other documents or take any position inconsistent
therewith for U.S. Federal, state or local tax law purposes.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the date first written above.
UNITED REFINING COMPANY
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
IBJ SCHRODER BANK & TRUST COMPANY
as Trustee
By:
------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, each of the undersigned Subsidiary Guarantors has caused
this Indenture to be duly executed as of this 9th day of June, 1997.
KIANTONE PIPELINE CORPORATION
By:
------------------------------------
Name:
Title:
KIANTONE PIPELINE COMPANY
By:
------------------------------------
Name:
Title:
UNITED JET CENTER, INC.
By:
------------------------------------
Name:
Title:
UNITED REFINING COMPANY OF
OF PENNSYLVANIA
By:
------------------------------------
Name:
Title:
KWIK-FILL, INC.
By:
------------------------------------
Name:
Title:
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INDEPENDENT GASOLINE AND OIL
OIL COMPANY OF ROCHESTER, INC.
By:
------------------------------------
Name:
Title:
BELL OIL, CORP.
By:
------------------------------------
Name:
Title:
PPC, INC.
By:
------------------------------------
Name:
Title:
SUPER TEST PETROLEUM, INC.
By:
------------------------------------
Name:
Title:
KWIK-FIL, INC.
By:
------------------------------------
Name:
Title:
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VULCAN ASPHALT REFINING
CORPORATION
By:
------------------------------------
Name:
Title:
111
EXHIBIT A
[FORM OF SERIES A SECURITY]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1) (a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE U.S. TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE U.S. OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASERS FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD, TRANSFERRED
OR DELIVERED AS PART OF ITS INITIAL DISTRIBUTION OR AT ANY TIME
THEREAFTER, DIRECTLY OR INDIRECTLY, OTHER THAN TO AFFILIATES OF THE
COMPANY CONTROLLING, UNDER COMMON CONTROL WITH OR CONTROLLED BY THE
ISSUERS, PENSION FUNDS, INSURANCE COMPANIES, SECURITIES FIRMS AND OTHER
INVESTMENT INSTITUTIONS, CENTRAL GOVERNMENTS, INTERNATIONAL ORGANIZATIONS
CREATED UNDER PUBLIC INTERNATIONAL LAW AND OTHER COMPARABLE ENTITIES,
INCLUDING, INTER ALIA, FINANCE COMPANIES OF INDUSTRIAL AND FINANCIAL
ENTERPRISES, WHO OR WHICH ARE ACTIVE ON A REGULAR AND
112
PROFESSIONAL BASIS IN THE FINANCIAL MARKETS FOR THEIR OWN ACCOUNT .
113
UNITED REFINING COMPANY
10 3/4% Senior Notes due 2007, Series A
CUSIP No.:
No . $
United Refining Company, a Pennsylvania corporation (the "Company"),
for value received, hereby promises to pay to ___________ or registered assigns,
the principal sum of $200,000,000 United States Dollars, on May __, 2007.
Interest Payment Dates: June 15 and December 15, commencing December
15, 1997
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
114
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated: June 9, 1997
UNITED REFINING COMPANY
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
115
This is one of the 10 3/4% Senior Notes due 2007, Series A,
described in the within-mentioned Indenture.
IBJ SCHRODER BANK & TRUST COMPANY
as Trustee
By: ___________________________
Authorized Signatory
116
(REVERSE OF SECURITY)
UNITED REFINING COMPANY
10 3/4% Senior Notes due 2007, Series A
1. Interest.
United Refining Company, a Pennsylvania corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semi-annually on June 15
and December 15 of each year (the "Interest Payment Date"), commencing December
15, 1997. Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from June 9,
1997. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal from time to
time on demand at the rate borne by the Securities plus 2% and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date even if the
Securities are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by wire transfer of U.S. Federal funds, or
interest by check payable in such U.S. Legal Tender. The Company may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar.
IBJ Schroder Bank & Trust Company (the "Trustee") will act as Paying
Agent and Registrar. The Company may change any Registrar or co-Registrar
without notice to the Holders;
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however, the Paying Agent shall always be the Trustee or any successor trustee,
under the Indenture.
4. Indenture and Guarantees.
The Company issued the Securities under an Indenture, dated as of
June 9, 1997 (the "Indenture"), among the Company, the Subsidiary Guarantors and
the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA, except as provided in the Indenture.
Notwithstanding anything to the contrary herein, the Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and the
TIA for a statement of them. The Securities are unsecured obligations of the
Company limited in aggregate principal amount to $200,000,000. Payment on each
Security is guaranteed on a senior basis, jointly and severally, by the
Subsidiary Guarantors pursuant to Article Ten of the Indenture.
5. Redemption.
(a) Optional Redemption. The Securities will be redeemable, at the
Company's option, in whole at any time or in part from time to time, on and
after June 15, 2002 at the following redemption prices (expressed as percentages
of the principal amount), together with accrued and unpaid interest, if any,
thereon to the Redemption Date if redeemed during the 12-month period
beginning :
Year Percentage
---- ----------
2002 ............................. 105.375%
2003 ............................. 103.583%
2004 ............................. 101.792%
2005 and thereafter ............. 100.000%
(b) Optional Redemption upon Public Equity Offering. On or prior to
June 15, 2000, the Company may redeem up to 35% of the aggregate principal
amount of the Securities with the net cash proceeds of one or more Equity
Offerings at a redemption price equal to 110.0% of the principal amount thereof,
118
-3-
plus accrued and unpaid interest, if any, to the Redemption Date; provided that
(a) at least $100 million aggregate principal amount of the Securities remain
outstanding immediately after the occurrence of such redemption and (b) such
redemption occurs within 60 days of the date of the closing of any such Equity
Offering.
(c) Selection of Securities for Redemption. If less than all of
the Securities are to be redeemed at any time, selection of the Securities to
be redeemed will be made by the Trustee from among the outstanding Securities
on a pro rata basis, by lot or by any other method permitted in the
Indenture.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations of
$1,000 may be redeemed only in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption.
7. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of U.S.$1,000 and integral multiples of U.S.$1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any Security being redeemed in part.
119
-4-
8. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
9. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Company at their request. After that, all liability of the Trustee and Paying
Agent with respect to such funds shall cease.
10. Discharge.
The Company may be discharged from their obligations under the
Indenture and the Securities except for certain provisions thereof, upon
satisfaction of certain conditions specified in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent (which may include consents
obtained in connection with a tender offer or exchange offer for securities) of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived other than any continuing Default or
Event of Default in the payment of the principal amount of, premium, if any, or
interest on the Securities with the consent (which may include consents obtained
in connection with a tender offer or exchange offer for securities) of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities to provide for the assumption
of the Company's obligations to Holders in the case of a merger or acquisition
or comply with any requirements of the Commission in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder of a Security.
120
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14. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and their subsidiaries to make Restricted
Payments, to incur Indebtedness, to create Liens, to issue preferred or other
Capital Stock of Subsidiaries, to sell assets, to permit restrictions on
dividends and other payments by subsidiaries to the Company, to consolidate,
merge or sell all or substantially all of their assets, to engage in
transactions with Affiliates or to engage in certain businesses. The limitations
are subject to a number of important qualifications and exceptions. The Company
must report to the Trustee on compliance with such limitations.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal or interest, including an accelerated
payment) if it determines that withholding notice is in their interest.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, their Subsidiaries or their respective Affiliates as if it
were not the Trustee.
17. No Recourse Against Others.
No director, officer, employee, direct or indirect stockholder or
incorporator, as such, of the Company or any of their Subsidiaries, including
but not limited to Parent and its
121
-6-
stockholders, shall have any liability for any obligation of the Company under
the Securities or the Indenture, or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security 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.
18. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company have caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
21. Registration Rights.
Pursuant to the Registration Rights Agreement, the Company will be
obligated upon the occurrence of certain events to consummate an exchange offer
pursuant to which the Holder of this Security shall, subject to certain
limitations, have the right to exchange this Series A Security for the Company's
[ ]% Senior Notes due 2007, Series B (the "Series B Securities"), which will be
registered under the Securities Act, in like principal amount and having terms
identical in all material respects as the Series A Securities. The Holders shall
be entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain
122
-7-
other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
United Refining Company, 15 Bradley Street, Warren, Pennsylvania 16365,
Attention: Myron L. Turfitt.
123
GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture referred to
in the Security upon which this notation is endorsed and each hereinafter
referred to as a "Subsidiary Guarantor," which term includes any successor
Person under the Indenture) have unconditionally guaranteed on a senior basis
(such guarantee by each Subsidiary Guarantor being referred to herein as the
"Guarantee") (i) the due and punctual payment of the principal amount of,
premium and interest on the Securities, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal
amount and interest, if any, on the Securities, to the extent lawful, and the
due and punctual performance of all other obligations of the Company to the
Holders or the Trustee all in accordance with the terms set forth in Article Ten
of the Indenture and (ii) in case of any extension of time of payment or renewal
of any Securities or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
No director, officer, employee, direct or indirect stockholder or
incorporator, as such, of any Subsidiary Guarantor, including but not limited to
Parent and its stockholders, shall have any liability for any obligations of the
Subsidiary Guarantors under the Guarantee or for any claim based on, in respect
of or by reason of such obligations or their creation.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
124
KIANTONE PIPELINE CORPORATION
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
KIANTONE PIPELINE COMPANY
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
UNITED JET CENTER, INC.
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
UNITED REFINING COMPANY OF
PENNSYLVANIA
By: ___________________________
Name:
Title:
By: ____________________________
Name:
Title:
125
KWIK FILL, INC.
By: _____________________________
Name:
Title:
INDEPENDENT GAS AND OIL COMPANY
OF ROCHESTER INC.
By: ____________________________
Name:
Title:
By: _____________________________
Name:
Title:
BELL OIL CORP.
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
PPC INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
126
SUPER TEST PETROLEUM INC.
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
KWIK-FIL, INC.
By: ____________________________
Name:
Title:
By: ___________________________
Name:
Title:
VULCAN ASPHALT REFINING
CORPORATION
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
127
ASSIGNMENT FORM
I or we assign and transfer this Security to
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
_______________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint _____________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another
to act for him.
Dated: __________________ Signed: ____________________
(Sign exactly as
name appears on the
other side of this
Security)
Signature Guarantee: ___________________________________________
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Trustee)
128
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.16 or Section 4.20 of the Indenture, check the appropriate
box:
Section 4.16 [ ] or Section 4.20 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.16 or Section 4.20 of the Indenture, state the
amount: $_____________
Date: _________________________ Your Signature: _____________________
(Sign exactly as
your name appears
on the other side
of this Security)
Signature Guarantee: ___________________________________________
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Trustee)
129
EXHIBIT B
[FORM OF SERIES B SECURITY]
UNITED REFINING COMPANY
10 3/4% Senior Note due 2007, Series B
CUSIP No.:
No . $
United Refining Company, a Pennsylvania corporation (the "Company"),
for value received, hereby promises to pay to ________________ or registered
assigns, the principal sum of $200,000,000 United States Dollars, on June 15,
2007.
Interest Payment Dates: June 15 and December 15 commencing December
15, 1997
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
130
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated:
UNITED REFINING COMPANY
By: _______________________________
Name:
Title:
By: ______________________________
Name:
Title:
131
This is one of the 10 3/4% Senior Notes due 2007, Series B,
described in the within-mentioned Indenture.
IBJ Schroder Bank & Trust Company,
as Trustee
By____________________________________
Authorized Signatory
132
(REVERSE OF SECURITY)
UNITED REFINING COMPANY
10 3/4% Senior Note due 2007, Series B
1. Interest.
United Refining Company, a Pennsylvania corporation (the "Company"),
hereby jointly and severally promises to pay interest on the principal amount of
this Security at the rate per annum shown above. The Company will pay interest
semi-annually on June 15 and December 15 of each year (the "Interest Payment
Date"), commencing December 15, 1997. Interest on the Securities will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from June 9, 1997. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to
time on demand at the rate borne by the Securities plus 2% and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date even if the
Securities are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by wire transfer of U.S. Federal funds, or
interest by check payable in such U.S. Legal Tender. The Company may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar.
IBJ Schroder Bank & Trust Company (the "Trustee") will act as Paying
Agent and Registrar. The Company may change any Registrar or co-Registrar
without notice to the Holders; however the Paying Agent shall always be the
Trustee or any successor trustee under the Indenture.
133
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4. Indenture and Guarantees.
The Company issued the Securities under an Indenture, dated as of
June 9, 1997 (the "Indenture"), among the Company, the Subsidiary Guarantors and
the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA, except as provided in the Indenture.
Notwithstanding anything to the contrary herein, the Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and the
TIA for a statement of them. The Securities are unsecured obligations of the
Company limited in aggregate principal amount to $200,000,000. Payment on each
Security is guaranteed on a senior basis, jointly and severally, by the
Subsidiary Guarantors pursuant to Article Ten of the Indenture.
5. Redemption.
(a) Optional Redemption. The Securities will be redeemable, at the
Company's option, in whole at any time or in part from time to time, on and
after June 15, 2002 at the following redemption prices (expressed as percentages
of the principal amount), together with accrued and unpaid interest, if any,
thereon to the Redemption Date if redeemed during the twelve-month period
beginning November 15:
Year Percentage
---- ----------
2002 .............................. 105.375%
2003 .............................. 103.583%
2004 .............................. 101.792%
2005 and thereafter .............. 100.000%
provided that the Company may not redeem the Securities prior to the Fifth
Anniversary with the proceeds of Asset Sales.
(b) Optional Redemption upon Public Equity Offering. On or prior to
June 15, 2000, the Company may redeem up to 35% of the aggregate principal
amount of the Securities with the net cash proceeds of one or more Equity
Offerings at a redemption price equal to 110.00% of the principal amount
thereof, plus accrued and unpaid interest to the Redemption Date;
134
-3-
provided that (a) at least $100 million aggregate principal amount of the
Securities remain outstanding immediately after the occurrence of such
redemption and (b) such redemption occurs within 60 days of the date of the
closing of any such Equity Offering.
(c) Selection of Securities for Redemption. If less than all of the
Securities are to be redeemed at any time, selection of the Securities to be
redeemed will be made by the Trustee from among the Outstanding Securities on a
pro rata basis, by lot or by any other method permitted in the Indenture.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations of
$1,000 may be redeemed only in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption.
7. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of U.S.$1,000 and integral multiples of U.S.$1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
135
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8. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
9. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Company at its request. After that, all liability of the Trustee and Paying
Agent with respect to such funds shall cease.
10. Discharge.
The Company may be discharged from their obligations under the
Indenture and the Securities except for certain provisions thereof upon
satisfaction of certain conditions specified in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, or the Securities may
be amended or supplemented with the written consent (which may include consents
obtained in connection with a tender offer or exchange offer for securities) of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived other than any continuing Default or
Event of Default in the payment of the principal amount of, premium, if any, or
interest on the Securities with the consent (which may include consents obtained
in connection with a tender offer or exchange offer for securities) of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities to provide for the assumption
of the Company's obligations to Holders in the case of a merger or acquisition
or comply with any requirements of the Commission in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder of a Security.
136
-5-
12. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and their subsidiaries to make Restricted
Payments, to incur Indebtedness, to create Liens, to issue preferred or other
Capital Stock of Subsidiaries, to sell assets, to permit restrictions on
dividends and other payments by subsidiaries to the Company, to consolidate,
merge or sell all or substantially all of their assets, to engage in
transactions with Affiliates or to engage in certain businesses. The limitations
are subject to a number of important qualifications and exceptions. The Company
must report to the Trustee on compliance with such limitations.
13. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal or interest, including an accelerated
payment) if it determines that withholding notice is in their interest.
14. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, their Subsidiaries or their respective Affiliates as if it
were not the Trustee .
15. No Recourse Against Others.
No director, officer, employee, direct or indirect stockholder or
incorporator, as such, of the Company or any of their Subsidiaries, including
but not limited to Parent and its stockholders, shall have any liability for any
obligation of
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the Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder of a
Security 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.
16. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
17. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
28. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company have caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
138
GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture referred to
in the Security upon which this notation is endorsed and each hereinafter
referred to as a "Subsidiary Guarantor," which term includes any successor
Person under the Indenture) have unconditionally guaranteed on a senior basis
(such guarantee by each Subsidiary Guarantor being referred to herein as the
"Guarantee") (i) the due and punctual payment of the principal amount of,
premium and interest on the Securities, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal
amount and interest, if any, on the Securities, to the extent lawful, and the
due and punctual performance of all other obligations of the Company to the
Holders or the Trustee all in accordance with the terms set forth in Article Ten
of the Indenture and (ii) in case of any extension of time of payment or renewal
of any Securities or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
No director, officer, employee, direct or indirect stockholder or
incorporator, as such, of any Subsidiary Guarantor, including but not limited to
Parent and its stockholders, shall have any liability for any obligations of the
Subsidiary Guarantors under the Guarantee or for any claim based on, in respect
of or by reason of such obligations or their creation.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
139
KIANTONE PIPELINE CORPORATION
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
KIANTONE PIPELINE COMPANY
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
UNITED JET CENTER, INC.
By: ___________________________
Name:
Title:
By: ____________________________
Name:
Title:
UNITED REFINING COMPANY OF
PENNSYLVANIA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
140
KWIK FILL, INC.
By: _____________________________
Name:
Title:
INDEPENDENT GAS AND OIL COMPANY
OF ROCHESTER INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
BELL OIL CORP.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
PPC INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
141
SUPER TEST PETROLEUM INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
KWIK-FIL, INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
VULCAN ASPHALT REFINING
CORPORATION
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
142
ASSIGNMENT FORM
I or we assign and transfer this Security to
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
_______________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint ________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: __________________ Signed: ____________________
(Sign exactly as
name appears on the
first page of this
Security)
Signature Guarantee: ___________________________________________
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Trustee)
143
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.16 or Section 4.20 of the Indenture, check the appropriate
box:
Section 4.16 [ ] or Section 4.20 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.16 or Section 4.20 of the Indenture, state the
amount: $___________
Date: ___________________________ Your Signature: _____________________
(Sign exactly as
your name appears
on the first page
of this Security)
Signature Guarantee: __________________________________________
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Trustee)
144
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the case
of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUERS OR THEIR AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
145
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 10 3/4% Senior Notes due 2007,
Series A (the "Securities")
of United Refining Company
This Certificate relates to $_______ principal amount of Securities
held in the form of* ___ a beneficial interest in a Global Security or* _______
Physical Securities by ______ (the "Transferor") .
The Transferor:*
|_| has requested by written order that the Registrar deliver in
exchange for its beneficial interest in a Global Security held by the Depositary
a Physical Security or Physical Securities in definitive, registered form of
authorized denominations and an aggregate number equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
|_| has requested the Registrar by written order to exchange or register
the transfer of a Physical Security or Physical Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with the Indenture relating to the above captioned Securities and the
restrictions on transfers thereof as provided in Section 2.16 of such Indenture,
and that the transfer of the Securities does not require registration under the
Securities Act of 1933, as amended (the "Act") because*:
|_| Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16(a)(II)(A) or Section
2.16(d)(i)(A) of the Indenture).
|_| Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
146
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|_| Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraphs (a)(1), (2), (3) or (7) of Rule
501 under the Act.
|_| Such Security is being transferred in reliance on Regulation S under
the Act.
|_| Such Security is being transferred in accordance with Rule 144 under
the Act.
|_| Such Security is being transferred in reliance on and in compliance
with another exemption from the registration requirements of the Act.
________________________________
[INSERT NAME OF TRANSFEROR]
By: _________________________
[Authorized Signatory]
Date: ______________________
*Check applicable box.
147
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
_____________, ____
Trustee
[Address]
Re: United Refining Company, Incorporated
(the "Company") Under the Indenture
(the "Indenture") relating to 10 3/4%
Senior Notes due 2007, Series A
Ladies and Gentlemen:
In connection with our proposed purchase of 10 3/4% Senior Notes due
2007, Series A (the "Securities"), of the Company, we confirm that:
1. We have received such information as we deem necessary in order
to make our investment decision.
2. We understand that any subsequent transfer of the Securities 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 Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. Persons except as permitted in the following sentence. We agree, on our
own behalf and on behalf of each account for which we acquire any Securities,
that, prior to (x) the date which is two years after the later of the date of
original issuance of the Securities and (y) such later date, if any, as may be
required by applicable laws, the Securities may be offered, resold, pledged or
otherwise transferred only (a) to the Company, (b) inside the United States to a
Person whom we reasonably believe to be a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in compliance
148
-2-
with Rule 144A under the Securities Act, (c) inside the United States to a
Person we reasonably believe to be an institutional accredited investor" (as
defined below) that, prior to such transfer, furnishes to the Trustee a signed
letter substantially in the form hereof, (d) outside the United States to
Persons other than U.S. Persons in offshore transactions meeting the
requirements of Rule 904 under Regulation S under the Securities Act, (e)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), (f) pursuant to an effective registration
statement under the Securities Act or (g) pursuant to another available
exemption from the registration requirements of the Securities Act, and, in each
case, in accordance with any applicable securities laws of any state of the
United States or any other applicable jurisdiction, and we further agree to
provide to any Person purchasing Securities from us a notice advising such
purchaser that resales of the Securities are restricted as stated herein.
4. We understand that, on any proposed resale of Securities, we will
be required to furnish to the Trustee and the Company, such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us will
bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) 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 Securities, and we and any accounts
for which we are acting are each able to bear the economic risk of our or their
investment, as the case may be.
6. We are acquiring the Securities purchased by us for our 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.
149
-3-
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 proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By: ________________________
[Authorized Signatory]
Upon transfer the Securities would be registered in the name of the
new beneficial owner as follows:
Name: ____________________________________
Address: _________________________________
Taxpayer ID Number: ______________________
150
EXHIBIT F
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
________________, ____
Trustee
[address]
Re: United Refining Company, Incorporated
(the "Company") 10 3/4% Senior Notes
due 2007, Series A (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $200,000,000 aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a Person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any Person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any Person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
151
-2-
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
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.
Very truly yours,
[Name of Transferor]
By: _______________________
[Authorized Signature]
Upon transfer the Securities would be registered in the name of the
new beneficial owner as follows:
Name: __________________________________
Address:________________________________
Taxpayer ID Number: ____________________