Exhibit 4.9
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GIANT INDUSTRIES, INC.
AND
THE SUBSIDIARY GUARANTORS
AND
THE BANK OF NEW YORK,
AS TRUSTEE
INDENTURE
DATED AS OF __________________
PROVIDING FOR ISSUANCE OF
NOTES IN SERIES
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GIANT INDUSTRIES, INC. INDENTURE
DETAILED CROSS-REFERENCE TABLE
Trust Indenture Act Indenture
Section Section
------- -------
310 (a)................................................................................. 7.10
(b)................................................................................. 7.08, 7.10
(c)................................................................................. N.A.
311 (a)................................................................................. 7.03
(b)................................................................................. 7.03
(c)................................................................................. 7.03
312 (a)................................................................................. 2.10, 13.02
(b)................................................................................. 13.02
(c)................................................................................. N.A.
313 (a)................................................................................. 7.06
(b)................................................................................. 7.06
(c)................................................................................. 7.05, 7.06
314 (a)................................................................................. N.A.
(b) (1)............................................................................. N.A.
(b) (2)............................................................................. N.A.
(c) (1)............................................................................. N.A.
(c) (2)............................................................................. N.A.
(c) (3)............................................................................. N.A.
(d)................................................................................. N.A.
(e)................................................................................. N.A.
(f)................................................................................. N.A.
315 (a)................................................................................. 7.02
(b)................................................................................. 7.02
(c)................................................................................. 7.02
(d)................................................................................. 7.02
(e)................................................................................. N.A.
316 (a)................................................................................. N.A.
(b)................................................................................. N.A.
(c)................................................................................. 13.02
317 (a) (1)............................................................................. N.A.
(a) (2)............................................................................. N.A.
(b)................................................................................. N.A.
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318 (a)................................................................................. N.A.
(b)................................................................................. N.A.
(c)................................................................................. N.A.
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE......................................... 1
Section 1.01. Definitions...................................................................... 1
Section 1.02. Rules of Construction............................................................ 8
Section 1.03. Incorporation by Reference of the Trust Indenture Act............................ 9
ARTICLE II. THE NOTES.......................................................................... 9
Section 2.01. Unlimited in Amount, Issuable in Series, Form and Dating......................... 9
Section 2.02. Execution, Authentication and Denominations...................................... 12
Section 2.03. Registrar, Paying Agent and Authenticating Agent; Paying Agent to Hold Money
in Trust 14
Section 2.04. Replacement Notes................................................................ 15
Section 2.05. Outstanding Notes................................................................ 15
Section 2.06. Temporary Notes.................................................................. 16
Section 2.07. Cancellation..................................................................... 16
Section 2.08. CUSIP Numbers.................................................................... 17
Section 2.09. Global Notes; Transfer and Exchange.............................................. 17
Section 2.10. Noteholder Lists................................................................. 20
Section 2.11. Defaulted Interest............................................................... 21
Section 2.12. Computation of Interest.......................................................... 21
ARTICLE III. REDEMPTION......................................................................... 21
Section 3.01. Method and Effect of Redemption.................................................. 21
Section 3.02. Exclusion of Certain Notes From Eligibility for Selection for Redemption......... 23
Section 3.03. Deposit of Redemption Price...................................................... 23
ARTICLE IV. COVENANTS.......................................................................... 23
Section 4.01. Payment of Principal, Premium and Interest....................................... 23
Section 4.02. Offices for Payments, Etc........................................................ 24
Section 4.03. Appointment to Fill a Vacancy in Office of Trustee............................... 24
Section 4.04. Paying Agents.................................................................... 24
Section 4.05. Written Statement to Trustee..................................................... 25
Section 4.06. Calculation of Original Issue Discount........................................... 25
ARTICLE V. CONSOLIDATION, MERGER, SALE OR CONVEYANCE.......................................... 26
Section 5.01. Company May Consolidate, Merge, Etc., on Certain Terms........................... 26
Section 5.02. Successor Company Substituted.................................................... 26
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Section 5.03. Opinion of Counsel to Trustee.................................................... 26
ARTICLE VI. DEFAULT AND REMEDIES............................................................... 27
Section 6.01. Events of Default................................................................ 27
Section 6.02. Acceleration..................................................................... 28
Section 6.03. Other Remedies................................................................... 30
Section 6.04. Waiver of Past Defaults.......................................................... 30
Section 6.05. Control by Majority.............................................................. 30
Section 6.06. Limitation on Suits.............................................................. 30
Section 6.07. Rights of Holders to Receive Payment............................................. 31
Section 6.08. Collection Suit by Trustee....................................................... 31
Section 6.09. Trustee May File Proofs of Claim................................................. 31
Section 6.10. Priorities....................................................................... 32
Section 6.11. Restoration of Rights and Remedies............................................... 32
Section 6.12. Undertaking for Costs............................................................ 33
Section 6.13. Rights and Remedies Cumulative................................................... 33
Section 6.14. Delay or Omission Not Waiver..................................................... 33
Section 6.15. Waiver of Stay, Extension or Usury Laws.......................................... 33
ARTICLE VII. THE TRUSTEE........................................................................ 34
Section 7.01. General.......................................................................... 34
Section 7.02. Certain Rights of Trustee........................................................ 34
Section 7.03. Individual Rights of Trustee..................................................... 35
Section 7.04. Trustee's Disclaimer............................................................. 36
Section 7.05. Notice of Default................................................................ 36
Section 7.06. Reports by Trustee to Holders.................................................... 36
Section 7.07. Compensation and Indemnity....................................................... 37
Section 7.08. Replacement of Trustee........................................................... 37
Section 7.09. Successor Trustee by Merger...................................................... 39
Section 7.10. Eligibility...................................................................... 39
Section 7.11. Money Held in Trust.............................................................. 39
ARTICLE VIII. DEFEASANCE AND DISCHARGE........................................................... 39
Section 8.01. Discharge of Company's Obligations............................................... 39
Section 8.02. Legal Defeasance................................................................. 40
Section 8.03. Covenant Defeasance.............................................................. 41
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Section 8.04. Application of Trust Money....................................................... 41
Section 8.05. Repayment to Company............................................................. 41
Section 8.06. Reinstatement.................................................................... 42
ARTICLE IX. SUPPLEMENTAL INDENTURES............................................................ 42
Section 9.01. Supplemental Indentures Without Consent of Holders............................... 42
Section 9.02. Supplemental Indentures with Consent of Holders.................................. 44
Section 9.03. Execution of Supplemental Indentures............................................. 45
Section 9.04. Effect of Supplemental Indentures................................................ 45
Section 9.05. Conformity with Trust Indenture Act.............................................. 46
Section 9.06. Reference in Notes to Supplemental Indentures.................................... 46
ARTICLE X. SINKING FUNDS...................................................................... 46
Section 10.01. Applicability of Article......................................................... 46
Section 10.02. Satisfaction of Sinking Fund Payments with Notes................................. 46
Section 10.03. Redemption of Notes for Sinking Fund............................................. 46
ARTICLE XI. SUBORDINATION OF NOTES............................................................. 47
Section 11.01. Applicability of Article; Agreement to Subordinate Notes to Senior Indebtedness.. 47
Section 11.02. No Payment on Subordinated Notes in Certain Circumstances........................ 47
Section 11.03. Subordinated Notes Subordinated to Prior Payment of All Senior Indebtedness on
Dissolution, Liquidation or Reorganization of the Company 49
Section 11.04. Holders of Subordinated Notes to be Subrogated to Rights of Holders of Senior
Indebtedness 50
Section 11.05. Obligations of the Company Unconditional......................................... 50
Section 11.06. Entitled to Assume Payments Not Prohibited in Absence of Notice.................. 51
Section 11.07. Application by Trustee of Assets Deposited With It............................... 51
Section 11.08. Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Indebtedness 51
Section 11.09. Holders Authorize Trustee to Effectuate Subordination of Subordinated Notes...... 52
Section 11.10. Right of Trustee to Hold Senior Indebtedness..................................... 52
Section 11.11. Article Eleven Not to Prevent Events of Default.................................. 52
Section 11.12. Payment.......................................................................... 52
Section 11.13. Trustee Not Fiduciary for Holders of Senior Indebtedness......................... 53
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ARTICLE XII. SUBSIDIARY GUARANTEES.............................................................. 53
Section 12.01. Unconditional Guarantees......................................................... 53
Section 12.02. Execution and Delivery of Guarantees............................................. 54
Section 12.03. Limitation of Guarantor's Liability.............................................. 55
Section 12.04. Subordination of Guarantees...................................................... 55
ARTICLE XIII. MISCELLANEOUS...................................................................... 55
Section 13.01. Trust Indenture Act of 1939...................................................... 55
Section 13.02. Noteholder Communications; Noteholder Actions.................................... 55
Section 13.03. Notices.......................................................................... 56
Section 13.04. Certificate and Opinion as to Conditions Precedent............................... 57
Section 13.05. Statements Required in Certificate or Opinion.................................... 58
Section 13.06. Payment Date Other Than a Business Day........................................... 58
Section 13.07. Governing Law; Waiver of Jury Trial.............................................. 58
Section 13.08. No Adverse Interpretation of Other Agreements.................................... 58
Section 13.09. Successors....................................................................... 58
Section 13.10. Duplicate Originals.............................................................. 58
Section 13.11. Separability..................................................................... 59
Section 13.12. Table of Contents and Headings................................................... 59
Section 13.13. No Liability of Directors, Officers, Employees, Incorporators and Stockholders... 59
EXHIBIT
EXHIBIT A - DTC Legend.......................................................................... A-1
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INDENTURE, dated as of _______________, among Giant Industries, Inc., a
Delaware corporation (the "Company"), the Subsidiary Guarantors listed as
signatories hereto, and The Bank of New York, a New York banking corporation, as
Trustee ("Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior or
subordinated debentures, notes or other evidences of indebtedness, which may be
convertible into or exchangeable for any securities of any person (including the
Company), and which may be guaranteed by the Subsidiary Guarantors, to be issued
in one or more series (the "Notes"), as herein provided, up to such principal
amount as may from time to time be authorized in or pursuant to one or more
resolutions of the Board of Directors or by supplemental indenture.
All things necessary to make this Indenture a valid, legal and binding
agreement of the Company and each of the Subsidiary Guarantors, in accordance
with its terms, have been done.
This Indenture is subject to, and will be governed by, the provisions of
the Trust Indenture Act that are required to be a part of and govern indentures
qualified under the Trust Indenture Act.
For and in consideration of the premises and the purchase from time to
time of the Notes by the Holders thereof, the parties hereto covenant and agree,
for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"Act" has the meaning assigned to such term in Section 13.02(b).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or Authenticating Agent.
"Agent Member" means a member of, or a participant in, the Depositary.
"Authenticating Agent" refers to a Person engaged to authenticate the
Notes instead of the Trustee.
"Bankruptcy Default" has the meaning assigned to such term in Section
6.01(h).
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized to act on behalf of the Board of Directors of such
Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City or in the city where the Corporate Trust
Office of the Trustee is located are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock or partnership interests and any and all warrants, options and rights with
respect thereto (whether or not currently exercisable), including each class of
common stock and preferred stock of such Person.
"Certificated Note" means a Note in fully-registered certificated form
without interest coupons.
"Commission" means the Securities and Exchange Commission.
"Company" means Giant Industries, Inc., a Delaware corporation, or any
successor obligor under the Indenture and the Notes pursuant to Article V.
"Company Order" means a written request or order signed in the name of the
Company by two Officers of the Company or by an Officer and the controller,
treasurer, an assistant treasurer, the secretary or an assistant secretary, and
delivered to the Trustee in respect of the series of Notes to which the Company
Order shall relate. A Company Order shall specify the amount of Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated.
"Corporate Trust Office" means the office of the Trustee, the Registrar
and any Paying Agent, the principal corporate trust office at which at any
particular time such respective entity's corporate trust business shall be
administered, which at the date of the Indenture is located at 101 Barclay
Street, 8 West, New York, New York 10286.
"Credit Agreements" means the Company's Second Amended and Restated Credit
Agreement dated as of May 14, 2002, among the Company, Bank of America, N. A.,
as Administrative Agent and as Letter of Credit Bank, and the lenders party
thereto, as amended, and the Company's Loan Agreement, dated as of May 14, 2002,
by and among Giant Yorktown, Inc., as Borrower, Wells Fargo Bank Nevada,
National Association, as Collateral Agent, and the persons listed therein as
lenders, as amended.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
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"Depositary" means with respect to the Notes of any series issuable or
issued in whole or in part in the form of one or more Global Notes, the Person
designated as Depositary for such series by the Company, which Depositary shall
be a clearing agency registered under the Exchange Act; and if at any time there
is more than one such Person, "Depositary" as used with respect to the Notes of
any series shall mean the Depositary with respect to the Notes of such series.
The initial Depositary shall be DTC.
"Designated Senior Indebtedness" means (1) any Senior Indebtedness of the
Company and/or any Subsidiary Guarantor permitted under this Indenture, the
original principal amount of which is $20 million or more and that has been
designated by the Company or such Subsidiary Guarantor as "Designated Senior
Indebtedness" and (2) the Indebtedness and/or other obligations under the Credit
Agreements.
"DTC" means The Depository Trust Company, a New York corporation, and its
successors.
"DTC Legend" means the legend set forth in Exhibit A.
"Event of Default" has the meaning assigned to such term in Section 6.01
hereof.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended,
and the rules of and regulations of the SEC thereunder.
"GAAP" means generally accepted accounting principles as in effect in the
United States of America from time to time.
"Global Note" means a Note in registered global form without interest
coupons.
"Guarantees" means, with respect to the Notes of any series, the
guarantees with respect to the Notes of such series by a Subsidiary Guarantor
pursuant to Article XII or a supplemental indenture thereto.
"Guarantor Obligations" has the meaning assigned to such term in Section
12.01.
"Holder" or "Noteholder" means the registered holder of any Note.
"Indebtedness" has, for any series of Notes issued or outstanding
hereunder, the meaning assigned to such term pursuant to a Board Resolution or
an Officers' Certificate or established in one or more indentures supplemental
hereto, prior to the issuance of Notes of any series pursuant to Section 2.01.
"Indenture" means this indenture, as amended, supplemented or restated
from time to time and shall include the terms of the or those particular series
of Notes established as contemplated by Section 2.01 and the particular
Guarantees, if any, established as contemplated by Section 12.01; provided,
however, that, if at any time more than one Person is acting as Trustee under
this instrument, "Indenture" shall mean, with respect to any one or more series
of Notes for which a Person is Trustee, this instrument as originally executed
or as it may from time to time be amended, supplemented or restated by one or
more indentures supplemental hereto
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entered into pursuant to the applicable provisions hereof, and shall include the
terms of the or those particular series of Notes for which such Person is
Trustee established as contemplated by Section 2.01, exclusive, however, of any
provisions or terms which relate solely to other series of Notes for which such
Person is not Trustee, regardless of when such terms or provisions were adopted,
and exclusive of any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"Insolvency or Liquidation Proceeding" means, with respect to any Person,
(i) an insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization proceeding or other similar case or proceeding,
relative to such Person, as such, or its assets, or (ii) any liquidation,
dissolution, reorganization proceeding or winding up of such Person (other than
any reincorporation of such Person in another jurisdiction), whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (iii)
any assignment for the benefit of creditors or any other marshaling of assets
and liabilities of such Person.
"Interest", when used with respect to an Original Issue Discount Note that
by its terms bears interest only after maturity, means interest payable after
maturity.
"Interest Payment Date" means, for any series of Notes issued and
outstanding hereunder, the date or dates in each year on which any interest on
such series is due and payable.
"Lien" means, with respect to any Person, any mortgage, pledge, lien,
encumbrance, easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real or personal
property of such Person, or a security interest of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option, right of first refusal or other similar agreement to sell,
in each case securing obligations of such Person, and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statute or statutes) of any jurisdiction).
"Notes" has the meaning assigned to such term in the recitals hereof and
more particularly means any Notes authenticated and delivered under this
Indenture; provided, however, that, if at any time there is more than one Person
acting as Trustee under this Indenture, "Notes" with respect to the series as to
which such Person is Trustee shall have the meaning stated in the first recital
of this Indenture and shall more particularly mean Notes authenticated and
delivered under this Indenture, exclusive, however, of Notes of any series as to
which such Person is not Trustee.
"Officer" means the president or chief executive officer, any vice
president, the chief financial officer, the chief accounting officer, the
controller, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary, of the Company or any Subsidiary Guarantor, as the case may
be.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two officers, one of which must be the principal executive, principal
financial or principal accounting officer.
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"Opinion of Counsel" means a written opinion signed by legal counsel, who
may be an employee of or counsel to the Company or any Subsidiary Guarantor.
Each opinion shall include the statements provided for in Section 13.05 hereof.
"Original Issue Discount Note" means any Note that provides that an amount
less than its principal amount is due and payable upon acceleration after an
Event of Default.
"Payment Blockage Period" has the meaning assigned to such term in Section
11.02.
"Payment Default" has the meaning assigned to such term in Section 11.02.
"Payment Notice" has the meaning assigned to such term in Section 11.02.
"Paying Agent" has the meaning assigned to such term in Section 2.03(a)
hereof.
"Person" means any individual, corporation, partnership, joint venture,
trust, estate, unincorporated organization or government or any agency or
political subdivision thereof.
"Post-Commencement Interest" means all interest accrued or accruing after
the commencement of any Insolvency or Liquidation Proceeding in accordance with
and at the contract rate (including, without limitation, any rate applicable
upon default) specified in the agreement or instrument creating, evidencing, or
governing any Senior Indebtedness, whether or not, pursuant to applicable law or
otherwise, the claim for such interest is allowed as a claim in such Insolvency
or Liquidation Proceeding.
"Principal" of any indebtedness means the principal amount of such
indebtedness (or if such indebtedness was issued with original issue discount,
the face amount of such indebtedness less the remaining unamortized portion of
the original issue discount of such indebtedness), together with, unless the
context otherwise indicates, any premium then payable on such indebtedness.
"Redemption Price" has the meaning assigned to such term in Section
3.01(b)(ii).
"Register" has the meaning assigned to such term in Section 2.03(a)
hereof.
"Registrar" has the meaning assigned to such term in Section 2.03(a)
hereof.
"Regular Record Date" means, for the interest payable on any Interest
Payment Date in respect of any series of Notes, except as provided in, or
pursuant to, Board Resolution and/or supplemental indenture (if any) relating
thereto, the day (whether or not a Business Day) that is fifteen days preceding
the applicable Interest Payment Date.
"Responsible Officer" shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, treasurer, assistant treasurer, trust
officer or any other officer of the Trustee who customarily performs functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of such
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person's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary.
"Senior Indebtedness" has, for any series of Notes issued or outstanding
hereunder, the meaning assigned to such term pursuant to a Board Resolution or
an Officers' Certificate or established in one or more indentures supplemental
hereto, prior to the issuance of Notes of any series pursuant to Section 2.01.
"Special Record Date" has the meaning assigned to such term in Section
2.11 hereof.
"Stated Maturity" means with respect to any indebtedness, the date
specified as the fixed date on which the final installment of principal of such
indebtedness is due and payable.
"Subordinated Notes" has the meaning assigned to such term in Section
11.01 hereof.
"Subordinated Securities" means, with respect to Subordinated Notes,
securities of the Company or any Subsidiary Guarantor that are subordinated at
least to the same extent as the Subordinated Notes or Guarantees, respectively,
to Senior Indebtedness of the Company and such Subsidiary Guarantor and to any
securities that are issued in exchange for any such Senior Indebtedness.
A "subsidiary" of any Person means (1) a corporation a majority of whose
Voting Stock is at the time, directly or indirectly, owned by such Person, by
one or more subsidiaries of such Person or by such Person and one or more
subsidiaries of such Person, (2) a partnership in which such Person or a
subsidiary of such Person is, at the date of determination, a general or limited
partner of such partnership, but only if such Person or its subsidiary is
entitled to receive more than 50% of the assets of such partnership upon its
dissolution, or (3) any other Person (other than a corporation or partnership)
in which such Person, directly or indirectly, at the date of determination
thereof, has (A) at least a majority ownership interest or (B) the power to
elect or direct the election of a majority of the directors or other governing
body of such Person. For purposes of the foregoing definition, an arrangement by
which a Person who owns an interest in an oil and gas property is subject to a
joint operating agreement, processing agreement, net profits interest,
overriding royalty interest, farm-out agreement, development agreement, area of
mutual interest agreement, joint bidding agreement, unitization agreement,
pooling arrangement or other similar agreement or arrangement shall not, in and
of itself, cause such Person to be considered a Subsidiary.
"Subsidiary" means any subsidiary of the Company.
"Subsidiary Guarantor" means (i) each of the Company's Subsidiaries in
existence on the date of this Indenture, except for Navajo Convenient Stores
Co., LLC, (ii) each of the Subsidiaries that becomes a guarantor of the Notes in
compliance with the provisions of this Indenture and (iii) each of the
Subsidiaries executing a supplemental indenture in which such Subsidiary agrees
to be bound by the terms of the Indenture; and their respective successors and
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assigns until released from their obligations under their Guarantee in
accordance with the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in effect
on the date this Indenture is originally executed.
"Trustee" means the party named as such in the first paragraph of the
Indenture or any successor trustee under the Indenture pursuant to Article VII.
If at any time there is more than one Person acting as Trustee hereunder,
"Trustee" as used with respect to the Notes of any series shall mean the Trustee
with respect to the Notes of that series.
"Unrestricted Subsidiary" means (1) any Subsidiary of the Company which at
the time of determination shall be an Unrestricted Subsidiary (as designated by
the Company's Board of Directors, as provided below) and (2) any Subsidiary of
an Unrestricted Subsidiary. The Company's Board of Directors may designate any
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns, or holds any Lien on, any property of the Company or
any other Restricted Subsidiary of the Company which is not a Subsidiary of the
Subsidiary to be so designated. The Company's Board of Directors may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, at any time (1) provide credit support for, or subject any of its
property or assets, other than the capital stock of any Unrestricted Subsidiary,
to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary,
including any undertaking, agreement or instrument evidencing such Indebtedness,
or (2) be directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary. For purposes of the foregoing, the designation of a Subsidiary as an
Unrestricted Subsidiary shall be deemed to be the designation of all of the
Subsidiaries of such Subsidiary.
"U.S. Government Obligations" means securities that are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged, (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation of the United States of America, which, in either case under
clauses (1) or (2) are not callable or redeemable at the option of the issuer
thereof.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors or other governing body of such Person.
Section 1.02. Rules of Construction. Unless the context otherwise
requires or except as otherwise expressly provided,
(1) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
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(2) "herein," "hereof" and other words of similar import refer to
the Indenture as a whole and not to any particular Section, Article or
other subdivision;
(3) all references to Sections or Articles or Exhibits refer to
Sections or Articles or Exhibits of or to the Indenture unless otherwise
indicated;
(4) references to agreements or instruments, or to statutes or
regulations, are to such agreements or instruments, or statutes or
regulations, as amended from time to time (or to successor statutes and
regulations);
(5) in the event that a transaction meets the criteria of more than
one category of permitted transactions or listed exceptions the Company
may classify such transaction as it, in its sole discretion, determines;
(6) a term has the meaning assigned to it;
(7) "or" is not exclusive;
(8) words in the singular include the plural, and words in the
plural include the singular;
(9) any gender used in this Indenture shall be deemed to include the
neuter, masculine or feminine genders; and
(10) provisions apply to successive events and transactions.
Section 1.03. Incorporation by Reference of the Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture. The
following Trust Indenture Act terms used in this Indenture have the following
meanings:
(1) "indenture securities" means the Notes.
(2) "indenture securityholder" means a Noteholder.
(3) "indenture to be qualified" means this Indenture.
(4) "indenture trustee" or "institutional trustee" means the
Trustee.
(5) "obligor" on the Notes means the Company and any successor
obligor on the Notes.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act have the meanings so
assigned to them.
8
ARTICLE II
THE NOTES
Section 2.01. Unlimited in Amount, Issuable in Series, Form and Dating.
The aggregate principal amount of Notes that may be authenticated and delivered
under this Indenture is unlimited. The Notes may be issued in one or more
series. The Notes may be subordinated in right of payment to Senior Indebtedness
as provided in Article XI. There shall be established in or pursuant to a Board
Resolution or an Officers' Certificate pursuant to authority granted under a
Board Resolution or established in one or more indentures supplemental hereto,
prior to the issuance of Notes of any series, any or all of the following, as
applicable:
(a) the title and series designation of the Notes of the series
(which shall distinguish the Notes of the series from all other series of
Notes);
(b) any limit upon the aggregate principal amount of Notes of the
series that may be authenticated and delivered under this Indenture
(except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes of the series
pursuant to this Article II);
(c) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Notes of the series will be issued;
(d) the date or dates on which the principal of the Notes of the
series is payable or the manner in which such date or dates are
determined;
(e) the rate or rates that may be fixed or variable at which the
Notes of the series shall bear interest, if any, or the manner in which
such rate or rates shall be determined, the date or dates from which such
interest shall accrue, the Interest Payment Dates for the Notes of the
series and the Regular Record Dates for the determination of Holders to
whom interest is payable and the basis upon which interest shall be
calculated, if other than on the basis of a 360-day year of twelve, 30-day
months;
(f) the place or places where the principal of, premium, if any, and
any interest, if any, on Notes of the series shall be payable or the
method of such payment, if by wire transfer, mail or by other means; and
the place or places where notices or demands to or upon the Company in
respect of the Notes of the series and this Indenture may be served, if,
in each case, other than as provided herein;
(g) the obligation or right, if any, of the Company to redeem,
purchase or repay Notes of the series, in whole or in part, pursuant to
any redemption, any sinking fund or analogous provisions or at the option
of a Holder thereof, and the price or prices at which and the period and
periods within which and the terms and conditions upon which Notes of the
series may or shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation or right;
(h) the date or dates, if any, on which, and the price or prices at
which, the Notes of the series will be repurchased by the Company at the
option of the Holders thereof and other detailed terms and provisions of
such repurchase obligations;
9
(i) if other than the Trustee, the identity of the trustee,
Registrar and/or Paying Agent and, if applicable, the Authentication Agent
for the Notes of that series;
(j) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Notes of the series shall be issuable;
(k) if other than the principal amount thereof, the portion of the
principal amount of Notes of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.02 hereof or the method by which such portion shall be determined;
(l) any addition to, change in, or deletion from the covenants set
forth in Articles IV or V or the discharge and defeasance provisions set
forth in Article VIII that applies to Notes of the series;
(m) any addition to, changes in or deletion from the Events of
Default with respect to the Notes of a particular series and any change in
the right of the Trustee or the requisite Holders of such Notes to declare
the principal amount thereof due and payable pursuant to Section 6.02
hereof;
(n) whether the amount of payment of principal of (and premium, if
any, on) or interest, if any, on the Notes of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on one or more currencies,
commodities, equity indices, or other indices), and the manner in which
such amounts shall be determined;
(o) the terms and conditions of any warrants that may be offered by
the Company in connection with Notes of any series;
(p) the forms of the Notes of the series and whether the Notes will
be issuable, in whole or in part, as Global Notes;
(q) the terms and conditions, if any, upon which such Global Note or
Notes may be exchanged in whole or in part for other individual Notes, and
the Depositary for such Global Note and Notes, if other than as set forth
herein;
(r) the provisions, if any, relating to any security provided for
the Notes of the series;
(s) the terms and conditions, if any, upon which additional interest
or amounts may be payable with respect to Notes of any series;
(t) the terms and conditions, if any, upon which the Notes of the
series shall be exchanged for or converted into other securities of the
Company or securities of another Person;
(u) any depositories, interest rate calculation agents or other
agents with respect to Notes of such series if other than those appointed
herein;
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(v) whether the Notes of such series are subject to subordination
and any modification of, addition to or provision in lieu of any of the
provisions of Article XI hereof, and whether such Notes rank as senior
Subordinated Notes or Subordinated Notes or any combination thereof;
(w) whether payment of any amounts due on the Notes will be
guaranteed by one of more guarantors, including Subsidiary Guarantors;
(x) any terms and conditions of the Guarantees that differ from
those described herein;
(y) the securities exchange or quotation system, if any, upon which
Notes of any series will be listed or quoted and any CUSIP number, if any;
and
(z) any other terms of the series (which terms may modify,
supplement or delete any provision of this Indenture with respect to such
series; provided, however, that no such term may modify or delete any
provision hereof if imposed by the Trust Indenture Act; and provided,
further, that any modification or deletion of the rights, duties or
immunities of the Trustee hereunder shall have been consented to in
writing by the Trustee).
All Notes of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
Board Resolution or Officers' Certificate or in any such indenture supplemental
hereto in each case, with appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture. Not all Notes
of any one series need be issued at the same time, and, unless otherwise
provided, a series may be reopened for issuance of additional Notes of such
series. Notes may differ between series in respect of any matters, provided that
all series of Notes shall be equally and ratably entitled to the benefits of
this Indenture.
The principal of, premium, if any, and any interest on the Notes shall be
payable at the office or agency of the Company designated in the form of Note
for the series (if other than the office or agency designated in Section 4.02
hereof); provided, however, that payment of interest may be made at the option
of the Company by check mailed to the address of the Person entitled thereto as
such address shall appear in the Register of Notes referred to in Section 2.03
hereof or by wire transfer to an account of the Person entitled thereto as such
account shall be provided to the Registrar and shall appear on the Register.
Each Note shall be in one of the forms approved from time to time by or
pursuant to a Board Resolution or Officers' Certificate, or established in one
or more indentures supplemental hereto. Prior to the delivery of a Note to the
Trustee for authentication in any form approved by or pursuant to a Board
Resolution, Officers' Certificate or supplemental indenture hereto, the Company
shall deliver to the Trustee the Board Resolution, Officers' Certificate or
supplemental indenture hereto by or pursuant to which such form of Note has been
approved, which Board Resolution, Officers' Certificate or supplemental
indenture hereto shall have attached thereto a true and correct copy of the form
of Note that has been approved by or pursuant thereto.
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The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage.
Section 2.02. Execution, Authentication and Denominations. The Notes shall
be executed for the Company by two Officers by facsimile or manual signature in
the name and on behalf of the Company. Such signatures may be the manual or
facsimile signatures of such Officers. If an Officer whose signature is on a
Note no longer holds that office at the time the Note is authenticated, the Note
will still be valid.
(a) A Note will not be valid until the Trustee manually signs the
certificate of authentication on the Note, with the signature conclusive
evidence that the Note has been authenticated under the Indenture. The
form of the Trustee's certificate of authentication to be borne by the
Notes shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes issued under the within-mentioned Indenture.
[Trustee], as Trustee
By: _________________________________
Authorized Signatory
Dated: _____________
(b) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes of any series
executed by the Company to the Trustee, together with a Company Order for
the authentication and delivery of such Notes. The Company Order may
provide that the Notes that are the subject thereof shall be authenticated
and delivered by the Trustee upon the written order of Persons designated
in the Company Order, and that such Persons are authorized to specify the
terms and conditions of such Notes, to the extent permitted by the Board
Resolutions, Officers' Certificate and/or supplemental indenture (if any)
relating thereto. If not all the Notes of any series are to be issued at
one time and if the Board Resolution, Officers' Certificate or
supplemental indenture establishing such series shall so permit, such
Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Notes and determination of the terms of particular Notes
of such series such as interest rate, maturity date, date of issuance and
date from which interest shall accrue. The Trustee shall execute and
deliver the supplemental indenture (if any) relating to the Notes and the
Trustee shall authenticate and deliver the Notes as specified in such
Company Order; provided that, prior to authentication and delivery of the
first Notes of any Series, the Trustee shall have received:
(1) a copy of the Board Resolutions or Officers' Certificate,
with a copy of (i) the form of Note approved thereby and (ii) with
respect to an Officers' Certificate, the Board Resolution approving
such series, attached thereto, or a supplemental indenture in
respect of the issuance of the Notes of the series, executed on
behalf of the Company;
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(2) an Officers' Certificate to the effect that the Notes of
such series comply or will comply with the requirements of this
Indenture and the Board Resolutions, Officer's Certificate and/or
supplemental indenture (if any);
(3) an Opinion of Counsel: (i) to the effect that (A) the
Notes of such series, the Board Resolutions, Officers' Certificate
and/or the supplemental indenture (if any) relating thereto comply
or will comply with the requirements of this Indenture, and (B) the
Notes of such series, when authenticated and delivered by the
Trustee in accordance with the said Company Order, will constitute
valid, legal and binding obligations of the Company enforceable in
accordance with their terms and will be entitled to the benefits of
the Indenture, subject to (x) bankruptcy and other laws affecting
creditors' rights generally as in effect from time to time, (y)
limitations of generally applicable equitable principles and (z)
other exceptions acceptable to the Trustee and its counsel; and (ii)
relating to such other matters as may reasonably be requested by the
Trustee or its counsel; and
(4) if the Notes to be issued are Original Issue Discount
Notes, an Officers' Certificate setting forth the yield to maturity
for the Notes or other information sufficient to compute amounts due
on acceleration, or specifying the manner in which such amounts are
to be determined, if such yield to maturity and other facts are not
specified in the form of the Notes.
(c) Subject to Section 7.02 hereof, the Trustee shall be fully
protected in relying upon the documents delivered to it as provided above
in connection with the issuance of any series of Notes.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Notes under this Section 2.02 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or the
Trustee in good faith shall determine that such action would expose the
Trustee to liability to Holders of previously issued and outstanding
Notes.
(e) Each Note shall be dated the date of its authentication unless
otherwise specified in the Officers' Certificate, Board Resolutions and/or
supplemental indenture relating thereto.
(f) The Notes of each series shall be issuable in definitive
registered form without coupons and, except for any Global Note, in such
denominations as shall be specified as contemplated by Section 2.01. In
the absence of any such provisions with respect to the Notes of any
series, the Notes of such series, other than a Global Note, shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 2.03. Registrar, Paying Agent and Authenticating Agent; Paying
Agent to Hold Money in Trust.
(a) The Company shall maintain an office or agency where Notes of a
particular series may be presented for registration of transfer or for
exchange (the
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"Registrar") and an office or agency where Notes of that series may be
presented for payment (a "Paying Agent"). The Registrar for a particular
series of Notes shall keep a register of the holders of the Notes of that
series and of their registration of transfer and exchange (the
"Register"). The Company may appoint one or more co-Registrars and one or
more additional paying agents for each series of Notes. The term "Paying
Agent" includes any additional paying agent. The Company shall promptly
notify the Trustee in writing of the name and address of any Paying Agent
not a party to this Indenture. The Company may appoint an Authenticating
Agent, in which case each reference in the Indenture to the Trustee in
respect of the obligations of the Trustee to be performed by that Agent
will be deemed to be references to the Agent. The Company may act as
Registrar or (except for purposes of Article VIII) Paying Agent. In each
case the Company and the Trustee will enter into an appropriate agreement
with the Agent implementing the provisions of the Indenture relating to
the obligations of the Trustee to be performed by the Agent and the
related rights. The Company initially appoints the Trustee as Registrar
and Paying Agent. The Company may change the Registrar or Paying Agent
without notice to any Holder; provided that upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee may serve
as Paying Agent for the Notes.
(b) On or prior to each due date of the principal of, premium, if
any, and interest on any Note, the Company shall deposit with the Paying
Agent a sum sufficient to pay such amount when so becoming due. The
Company will require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will 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, premium, if any, and interest on the Notes and will
promptly notify the Trustee of any default by the Company in making any
such payment. The Company at any time may require a 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 payment
default, upon written request to a Paying Agent, require the Paying Agent
to pay all money held by it to the Trustee and to account for any funds
disbursed. Upon doing so, the Paying Agent will have no further liability
for the money so paid over to the Trustee.
Section 2.04. Replacement Notes. If a mutilated Note is surrendered to the
Trustee or the Company or if a Holder claims that its Note has been lost,
destroyed or wrongfully taken, the Company will issue and the Trustee will
authenticate a replacement Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding. Every replacement Note is an
additional obligation of the Company and entitled to the benefits of the
Indenture. An indemnity must be furnished by the Holder that is sufficient in
the judgment of both the Trustee and the Company to protect the Company, the
Subsidiaries, the Trustee, and any Agent from any loss they may suffer if a Note
is replaced. The Company may charge the Holder for the expenses of the Company
and the Trustee in replacing a Note. In case the mutilated, lost, destroyed or
wrongfully taken Note has become or is about to become due and payable, the
Company in its discretion may pay the Note instead of issuing a replacement
Note. Upon the issuance of any replacement Note under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
14
Section 2.05. Outstanding Notes.
(a) Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for:
(i) Notes cancelled by the Trustee or delivered to it
for cancellation;
(ii) any Note which has been replaced pursuant to
Section 2.04 unless and until the Trustee and the Company
receive proof satisfactory to them that the replaced Note is
held by a bona fide purchaser in whose hands such Note is a
valid obligation of the Company;
(iii) on or after the maturity date or any redemption
date, those Notes payable or to be redeemed or purchased on
that date for which the Trustee (or Paying Agent, other than
the Company or an Affiliate of the Company) holds in trust
money sufficient to pay all amounts then due; provided that if
such Notes, or portions thereof, are to be redeemed prior to
the maturity thereof, notice of such redemption shall have
been given as herein provided, or provisions satisfactory to
the Trustee shall have been made for giving such notice; and
(iv) solely to the extent provided in Article VIII,
Notes which are subject to legal defeasance or covenant
defeasance as provided in Section 8.02 or 8.03.
(b) A Note does not cease to be outstanding because the
Company, a Subsidiary or one of their Affiliates holds the Note,
provided that in determining whether the Holders of the requisite
principal amount of the outstanding Notes have given or taken any
request, demand, authorization, direction, notice, consent, waiver or
other action hereunder, Notes owned by the Company or any Affiliate of
the Company will be disregarded and deemed not to be outstanding (it
being understood that in determining whether the Trustee is protected
in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Notes which a Responsible
Officer of the Trustee knows to be so owned will be so disregarded).
Notes so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Company or any Affiliate of the Company.
(c) In determining whether the holders of the requisite
principal amount of outstanding Notes of any or all series have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) the principal amount of an Original Issue
Discount Note that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof, and (ii) Notes owned beneficially
by the Company or any other obligor on the Notes with respect to which
such determination is being made or any Affiliate of the Company or any
Affiliate of any other obligor on the Notes with respect to which such
determination is being made shall be disregarded and deemed not to be
outstanding, except that, in determining
15
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent or waiver, only Notes which a Responsible Officer of
the Trustee actually knows to be so owned shall be so
disregarded. Notes so owned by the Company which have been
pledged in good faith may be regarded as outstanding for such
purpose if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Issuer.
Section 2.06. Temporary Notes. Until definitive Notes of any series are
ready for delivery, the Company may prepare and the Trustee will authenticate
temporary Notes upon a Company Order. Temporary Notes will be substantially in
the form of definitive Notes of such series but may have insertions,
substitutions, omissions and other variations determined to be appropriate by
the Officers executing the temporary Notes, as evidenced by the execution and
authentication of the temporary Notes. If temporary Notes are issued, the
Company will cause definitive Notes to be prepared without unreasonable delay.
After the preparation of definitive Notes, the temporary Notes will be
exchangeable for definitive Notes upon surrender of the temporary Notes at the
office or agency of the Company designated for the purpose pursuant to Section
4.02, without charge to the Holder. Upon surrender for cancellation of any
temporary Notes, the Company will execute and the Trustee will authenticate and
deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes will be
entitled to the same benefits under the Indenture as definitive Notes.
Section 2.07. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder that the Company has not issued and sold. Any Registrar or the Paying
Agent will forward to the Trustee any Notes surrendered to it for transfer,
exchange or payment. The Trustee will cancel all Notes surrendered for transfer,
exchange, payment or cancellation and dispose of them in accordance with its
normal procedures or a Company Order. The Trustee shall deliver certification of
all cancelled Notes to the Company and shall return cancelled Notes to the
Company upon its written request therefor. The Company may not issue new Notes
to replace Notes it has paid in full or delivered to the Trustee for
cancellation. If the Company acquires any of the Notes, such acquisition shall
not operate as a redemption or satisfaction of indebtedness represented by such
Notes unless or until the same are delivered to the Trustee for cancellation.
Section 2.08. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers, and the Trustee will use CUSIP numbers in notices of redemption
or exchange as a convenience to Holders. Any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of redemption or exchange and
reliance may be placed only on the identification number printed on the Notes,
and any such redemption or exchange shall not be affected by any defect or
omission in such numbers. The Company will promptly notify the Trustee in
writing of any change in the CUSIP numbers.
Section 2.09. Global Notes; Transfer and Exchange.
16
(a) The Notes will be issued in registered form only, without
coupons, and the Company shall cause the Registrar to maintain the
Register for registering the record ownership of the Notes by the
Holders and transfers and exchanges of the Notes.
(b) Each Global Note will be registered in the name of the
Depositary or its nominee. The Depositary shall be a clearing agency
registered under the Exchange Act. The Company initially appoints DTC
to act as Depositary with respect to the Notes in global form.
Initially, the Global Notes shall be issued to the Depositary,
registered in the name of Cede & Co., as the nominee of the Depositary,
and deposited with the Trustee as custodian for Cede & Co. So long as
DTC is serving as the Depositary thereof, each Global Note will bear
the DTC Legend.
(i) Each Global Note will be delivered to the Trustee
as custodian for the Depositary. Transfers of a Global Note
(but not a beneficial interest therein) will be limited to
transfers thereof in whole, but not in part, by the Depositary
to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary
except as set forth in Section 2.09(b)(iv).
(ii) Agent Members will have no rights under the
Indenture with respect to any Global Note held on their behalf
by the Depositary, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner and Holder of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing,
the Depositary or its nominee may grant proxies and otherwise
authorize any Person (including any Agent Member and any
Person that holds a beneficial interest in a Global Note
through an Agent Member) to take any action which a Holder is
entitled to take under the Indenture or the Notes, and nothing
herein will impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the
exercise of the rights of a holder of any security.
(iii) If (A) the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary for a
Global Note and a successor depositary is not appointed by the
Company within 90 days of the notice or (B) the Company
notifies the Trustee to effect such exchange, the Trustee will
promptly exchange each beneficial interest in the Global Note
for one or more Certificated Notes in authorized denominations
having an equal aggregate principal amount and registered in
the name of the owner of such beneficial interest, as
identified to the Trustee by the Depositary, and thereupon the
Global Note will be deemed canceled.
(iv) Unless otherwise provided herein or in a Board
Resolution or Officers' Certificate establishing a series of
Notes or in an indenture supplemental hereto, beneficial
interests in a Global Note may not be exchanged for
Certificated Notes.
17
(c) Each Certificated Note will be registered in the name of
the Holder thereof or its nominee.
(d) A Holder may transfer a Note of any series (or a
beneficial interest therein) to another Person or exchange a Note of
any series (or a beneficial interest therein) for another Note or Notes
of any authorized denomination of the same series by presenting to the
Trustee a written request therefor stating the name of the proposed
transferee or requesting such an exchange, accompanied by any
certification, opinion or other document reasonably required by the
Trustee. The Trustee will promptly register any transfer or exchange
that meets the requirements of this Section by noting the same in the
register maintained by the Trustee for the purpose; provided that:
(i) no transfer or exchange will be effective until
it is registered in such register, and
(ii) the Trustee will not be required (A) to issue,
register the transfer of or exchange any Note of any
particular series during the period 15 days before the day of
mailing of a note of redemption of Notes of that series to be
redeemed or purchased, (B) to register the transfer of or
exchange any Note so selected for redemption or purchase in
whole or in part, except, in the case of a partial redemption
or purchase, that portion of any Note not being redeemed or
purchased, or (C) if a redemption or a purchase is to occur
after a Regular Record Date but on or before the corresponding
Interest Payment Date, to register the transfer of or exchange
such Note on or after the Regular Record Date and before the
date of redemption or purchase. Prior to the registration of
any transfer, the Company, the Trustee and their agents will
treat the Person in whose name the Note is registered as the
owner and Holder thereof for all purposes (whether or not the
Note is overdue) and will not be affected by notice to the
contrary.
From time to time the Company will execute and the Trustee
will authenticate additional Notes as necessary in order to permit the
registration of a transfer or exchange in accordance with this Section.
No service charge will be imposed in connection with any
transfer or exchange of any Note, 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 a transfer tax or
other similar governmental charge payable upon exchange pursuant to
subsection (b)(iv)).
(e) If a beneficial interest in a Global Note of any
particular series is transferred or exchanged for a beneficial interest
in another Global Note of the same series, the Trustee will (A) record
a decrease in the principal amount of the Global Note being transferred
or exchanged equal to the principal amount of such transfer or exchange
and (B) record a like increase in the principal amount of the other
Global Note. Any beneficial interest in one Global Note that is so
transferred to a Person who takes delivery in the form of an interest
in another Global Note, or so exchanged for an interest in another
Global Note, will, upon such transfer or exchange, cease to be an
interest in such
18
Global Note and become an interest in such other Global Note for as
long as it remains such an interest.
(f) If a beneficial interest in a Global Note of any
particular series is transferred or exchanged for a Certificated Note
of the same series, the Trustee will (A) record a decrease in the
principal amount of such Global Note equal to the principal amount of
such transfer or exchange and (B) deliver one or more new Certificated
Notes of such series in authorized denominations having an equal
aggregate principal amount to the transferee (in the case of a
transfer) or the owner of such beneficial interest (in the case of an
exchange), registered in the name of such transferee or owner, as
applicable.
(g) If a Certificated Note of any particular series is
transferred or exchanged for a beneficial interest in a Global Note of
the same series, the Trustee will (A) cancel such Certificated Note,
(B) record an increase in the principal amount of such Global Note
equal to the principal amount of such transfer or exchange and (C) in
the event that such transfer or exchange involves less than the entire
principal amount of the canceled Certificated Note, deliver to the
Holder thereof one or more new Certificated Notes of the same series in
authorized denominations having an aggregate principal amount equal to
the untransferred or unexchanged portion of the canceled Certificated
Note, registered in the name of the Holder thereof.
(h) If a Certificated Note of any particular series is
transferred or exchanged for another Certificated Note of the same
series, the Trustee will (A) cancel the Certificated Note being
transferred or exchanged, (B) deliver one or more new Certificated
Notes of such series in authorized denominations having an aggregate
principal amount equal to the principal amount of such transfer or
exchange to the transferee (in the case of a transfer) or the Holder of
the canceled Certificated Note (in the case of an exchange), registered
in the name of such transferee or Holder, as applicable, and (C) if
such transfer or exchange involves less than the entire principal
amount of the canceled Certificated Note, deliver to the Holder thereof
one or more Certificated Notes of such series in authorized
denominations having an aggregate principal amount equal to the
untransferred or unexchanged portion of the canceled Certificated Note,
registered in the name of the Holder thereof.
(i) With respect to the Trustee,
(i) The Trustee shall have no responsibility or
obligation to any beneficial owner in a Global Note, a member
of, or a participant in the Depository or other Person with
respect to the accuracy of the records of the Depository or
its nominee or of any participant or member thereof, with
respect to any ownership interest in the Notes or with respect
to the delivery to any participant, member, beneficial owner
or other Person (other than the Depository) of any notice
(including any notice of redemption) or the payment of any
amount, under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to
be made to Holders under the Notes shall be given or made only
to or upon the order of the registered Holders (which shall be
the Depository or its nominee in the case of the Global Note).
The rights of beneficial owners in
19
the Global Note shall be exercised only through the Depository
subject to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully protected
in relying upon information furnished by the Depository with
respect to its members, participants and any beneficial
owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in
any Note (including any transfers between or among Depository
participants, members or beneficial owners in the Global Note)
other than to make any required delivery of such certificates
and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine
substantial compliance as to form with the express
requirements hereof.
Section 2.10. Noteholder 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 Noteholders, separately by series, and shall
otherwise comply with Trust Indenture Act Section 312(a). If the Trustee is not
the Registrar, the Company shall furnish to the Trustee on the Regular Record
Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Noteholders, separately by series, relating to such Interest
Payment Date or request, as the case may be.
Section 2.11. Defaulted Interest. If the Company defaults in a payment
of interest on the Notes of any series, such installment of interest shall
forthwith cease to be payable to the Holders in whose names the Notes were
registered on the Regular Record Date applicable to such installment of
interest. Defaulted interest (including any interest on such defaulted interest)
may be paid by the Company, at its election, as provided in clause (a) or (b)
below.
(a) The Company may elect to make payment of any defaulted
interest (including any interest on such defaulted interest) to the
Holders in whose names the Notes are registered at the close of
business on a special record date for the payment of such defaulted
interest (a "Special Record Date"), which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid and the date of
the proposed payment. Thereupon the Trustee shall fix a Special Record
Date for the payment of such defaulted interest, which shall not be
more than 15 calendar days and not less than 10 calendar days prior to
the date of the proposed payment and not less than 10 calendar days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payments of such defaulted interest and the
Special Record Date therefor to be sent, first-class mail, postage
prepaid, to each Holder at such Holder's address as it appears in the
registration books of the Registrar, at least 15 calendar days prior to
such Special Record Date. Notice of the proposed payment of such
defaulted interest and the Special Record Date therefor having been
mailed as aforesaid, such defaulted interest shall be paid to the
Holders in whose names the Notes are
20
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (b).
(b) Alternatively, the Company may make payment of any
defaulted interest (including any interest on such defaulted interest)
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause (b), such manner of payment shall be deemed practicable by the
Trustee.
Section 2.12. Computation of Interest. Except as otherwise specified as
contemplated by Section 2.01 for Notes of any series, any interest on the Notes
of each series shall be computed on the basis of a 360-day year of twelve,
30-day months.
ARTICLE III.
REDEMPTION
Section 3.01. Method and Effect of Redemption.
(a) If the Company elects to redeem Notes of any series
pursuant to the optional redemption provisions (if any) thereof, it
must notify the Trustee of the redemption date, the redemption price
and the principal amount of Notes of that series to be redeemed by
delivering written notice at least 35 days before the redemption date
(unless a shorter period is satisfactory to the Trustee). Any such
notice may be cancelled at any time prior to notice of such redemption
being mailed to any Holder and shall thereby be void and of no effect.
If fewer than all of the Notes of any series are being redeemed, the
particular Notes to be redeemed shall be selected not more than 30 days
prior to the redemption date by the Trustee, from the outstanding Notes
of such series not previously called for redemption, by such method as
may be specified by the terms of such Notes or, if no such method is so
specified, by such method as the Trustee shall deem fair and
appropriate. The Trustee shall notify the Company promptly in writing
of the Notes or portions of Notes to be called for redemption and, in
the case of any Notes selected for partial redemption, the principal
amount thereof to be redeemed. Except as otherwise provided as to any
particular series of Notes, Notes and portions thereof that the Trustee
selects shall be in amounts equal to the minimum authorized
denomination for Notes of the series to be redeemed or any integral
multiple thereof, except that if all of the Notes of the series are to
be redeemed, the entire outstanding amount of the Notes of the series
held by such Holder, even if not equal to the minimum authorized
denomination for the Notes of that series, shall be redeemed.
Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
(b) Notice of redemption must be mailed by first-class mail by
the Company or at the Company's request, by the Trustee in the name and
at the expense of the Company, to Holders at the address set forth in
the most recent noteholder list described in Section 2.10 hereof whose
Notes are to be redeemed at least 30 days but not more than 60 days
before the redemption date (unless the Trustee shall have agreed to a
shorter
21
period). The notice of redemption will identify the Notes (including
CUSIP numbers) to be redeemed and will include or state the following:
(i) the redemption date;
(ii) the redemption price fixed in accordance with
the terms of the Notes of the series to be redeemed, plus
accrued interest, if any, to the date fixed for redemption
(the "Redemption Price");
(iii) the place or places where Notes are to be
surrendered to the Paying Agent for redemption;
(iv) that Notes called for redemption must be so
surrendered to the Paying Agent in order to collect the
Redemption Price;
(v) that, on the redemption date, the Redemption
Price will become due and payable on Notes called for
redemption, and, unless the Company defaults in payment of the
Redemption Price, interest on Notes called for redemption will
cease to accrue on and after the redemption date;
(vi) if less than all the outstanding Notes of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Notes to be redeemed;
(vii) if any Note contains a CUSIP number, no
representation is being made as to the correctness of the
CUSIP number either as printed on the Notes or as contained in
the notice of redemption and that the Holder should rely only
on the other identification numbers printed on the Notes; and
(viii) that the redemption is for a sinking fund, if
such is the case.
(ix) Once notice of redemption is sent to the
Holders, Notes called for redemption become due and payable at
the Redemption Price on the redemption date, and upon
surrender of the Notes called for redemption, the Company
shall redeem such Notes at the Redemption Price. Commencing on
the redemption date, Notes redeemed will cease to accrue
interest. Upon surrender of any Note redeemed in part, the
Holder will receive a new Note equal in principal amount to
the unredeemed portion of the surrendered Note.
Section 3.02. Exclusion of Certain Notes From Eligibility for Selection
for Redemption. Notes shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in an
Officers' Certificate delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Company
or (b) an entity specifically identified in such Officers' Certificate as an
Affiliate of the Company.
Section 3.03. Deposit of Redemption Price. Prior to 10:00 a.m. E.S.T.
on any redemption date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the
22
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 4.04) an amount of money sufficient to pay the Redemption
Price of, and (except if the redemption date shall be an Interest Payment Date,
unless otherwise specified in or pursuant to the Board Resolutions or in the
supplemental indenture executed in connection with the particular series of
Notes) any accrued interest on, all the Notes or portions thereof which are to
be redeemed on that date.
ARTICLE IV.
COVENANTS
Section 4.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of Notes that it will duly
and punctually pay or cause to be paid the principal of, and interest on, each
of the Notes of such series (together with any additional amounts payable
pursuant to the terms of such Notes) at the place or places, at the respective
time or times and in the manner provided in such Notes and in this Indenture.
Each installment of interest on any Note may at the Company's option be paid by
mailing a check for such interest, payable to or upon the written order of the
Person entitled thereto pursuant to Section 2.03, to the address of such Person
as it appears on the Register or by wire transfer to an account of the Person
entitled thereto as such account shall be provided to the Registrar and shall
appear on the Register. At the option of the Company, all payments of principal
may be paid by official bank check to the Holder of the Note or other Person
entitled thereto against surrender of such Note.
Section 4.02. Offices for Payments, Etc. The Company will maintain in
the Borough of Manhattan, The City of New York, an agency where the Notes of
each series may be presented for payment, an agency where the Notes of each
series may be presented for exchange as is provided in this Indenture and, if
applicable, pursuant to Section 2.03 an agency where the Notes of each series
may be presented for registration of transfer as is provided in this Indenture,
which, in each case, initially shall be the Corporate Trust Office of the
Trustee.
The Company will give to the Trustee written notice of the location of
each such agency and of any change of location thereof. In case the Company
shall fail to maintain any agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give such notice of
the location or of any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee. The Company hereby initially appoints the Trustee
as its agency for each of said purposes.
The Company may from time to time designate one or more additional
agencies where the Notes of a series may be presented for payment, where the
Notes of that series may be presented for exchange as provided in this Indenture
and pursuant to Section 2.03 and where the Notes of that series may be presented
for registration of transfer as provided in this Indenture, and the Company may
from time to time rescind any such designation, as the Company may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
the agency provided for in the first paragraph of this Section 4.02. The Company
will give to the Trustee prompt written notice of any such designation or
rescission thereof.
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Section 4.03. Appointment to Fill a Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.08, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Notes hereunder.
Section 4.04. Paying Agents. Whenever the Company shall appoint a
paying agent other than the Trustee with respect to the Notes of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Notes of such
series in trust for the benefit of the holders of the Notes of such
series or of the Trustee;
(b) that it will give the Trustee notice of any failure by the
Company to make any payment of the principal of or interest on the
Notes of such series when the same shall be due and payable; and
(c) that at any time during the continuance of any such
failure, upon the written request of the Trustee it will forthwith pay
to the Trustee all sums so held in trust by such paying agent.
The Company will, prior to each due date of the principal of or
interest on the Notes of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Company will promptly notify the Trustee of any
failure to take such action.
If the Company shall act as its own paying agent with respect to the
Notes of any series, it will, on or before each due date of the principal of or
interest on the Notes of such series, set aside, segregate and hold in trust for
the benefit of the holders of the Notes of such series a sum sufficient to pay
such principal or interest so becoming due. The Company will promptly notify the
Trustee of any failure to take such action.
Notwithstanding anything in this Section to the contrary, the Company
may, at any time, for the purpose of obtaining satisfaction and discharge of one
or more series of Notes, or for any other reason, pay, or cause to be paid, to
the Trustee all sums held in trust by the Company or any Paying Agent, such sums
to be held by the Trustee upon the same trusts and upon the same arrangement as
those upon which such sums were held by the Company or such Paying Agent.
Notwithstanding anything in this Section to the contrary, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Section 8.05.
Section 4.05. Written Statement to Trustee. The Company shall deliver
to the Trustee on or before May 15 in each year (beginning the May 15 after the
first issuance of Notes under this Indenture) a written statement (which need
not comply with Section 13.05 hereof), signed by two of its Officers, one of
which shall be the principal executive, principal financial or principal
accounting officer to the Company, stating that in the course of the performance
of their duties as officers of the Company they would normally have knowledge of
any default by the Company in
24
the performance or fulfillment of any covenant, agreement or condition contained
in this Indenture, without regard to notice requirements or periods of grace,
stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the nature
thereof.
The Company shall deliver to a Responsible Officer of the Trustee, as
soon as possible and in any event within 10 Business Days after the Company
becomes aware of the occurrence of any Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, in
each case, under clauses (d), (e) or (f) of Section 6.01 hereof, an Officers'
Certificate setting forth the details of such Event of Default or default and
the action which the Company proposes to take with respect thereto.
Section 4.06. Calculation of Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year (a) a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on outstanding Notes as of the end of such year and
(b) such other specific information relating to such original issue discount as
may then be relevant under the Internal Revenue Code of 1986, as amended from
time to time.
ARTICLE V.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 5.01. Company May Consolidate, Merge, Etc., on Certain Terms.
The Company covenants that it will not merge or consolidate into or convey,
transfer or lease all or substantially all of its assets to any Person, unless
(i) either, in the case of a merger, the Company shall be the surviving
corporation, or the Person into which the Company is merged or which acquires
all or substantially all the assets of the Company (if other than the Company)
shall expressly assume the due and punctual payment of the principal of and
interest on all the Notes of each series, according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed or observed by the Company, by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation or Person, and (ii) the Company or such surviving corporation
or Person, as the case may be, shall not, immediately after such merger or
consolidation, or such conveyance, transfer or lease, be in Default in the
performance of any such covenant or condition.
Section 5.02. Successor Company Substituted. In case of any such
consolidation, merger, conveyance, transfer or lease, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Company prior to such
succession any or all of the Notes issuable hereunder, which theretofore shall
not have been signed by the Company and delivered to the Trustee; and, upon the
order of such successor corporation instead of the Company and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Notes, which previously shall have been
signed and delivered by the Officers of the Company to the Trustee for
authentication, and any Notes, which such successor corporation thereafter shall
cause to be
25
signed and delivered to the Trustee for that purpose. All of the Notes so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Notes theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Notes had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, transfer or lease,
such changes in phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease), the Company or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Notes and may be
liquidated and dissolved.
Section 5.03. Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Sections 7.01 and 7.02, shall be provided with an Opinion of
Counsel, prepared in accordance with Section 13.05, as conclusive evidence that
any such consolidation, merger, conveyance, sale or lease, and any such
assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
ARTICLE VI.
DEFAULT AND REMEDIES
Section 6.01. Events of Default. An "Event Of Default" occurs with
respect to Notes of any particular series, unless it is specifically deleted or
modified in the Officers' Certificate, Board Resolutions and/or supplemental
indenture (if any) in respect of such series, and in addition to any other
events which may be specified as Events of Default in the Officers' Certificate,
Board Resolutions and/or supplemental indenture (if any) in respect of such
series, if:
(a) the Company or any Subsidiary Guarantor defaults in the
payment of the principal of or premium, if any, on any Note of such
series when the same becomes due and payable at maturity, upon
acceleration or redemption, or otherwise (whether or not prohibited by
the subordination provisions of the Indenture);
(b) the Company or any Subsidiary Guarantor defaults in the
payment of interest on any Note of such series when the same becomes
due and payable (whether or not prohibited by the subordination
provisions of this Indenture), and the default continues for a period
of 30 days;
(c) the Company defaults in the payment of any sinking fund
installment, when and as due by the terms of a Note of that series, and
the default continues for a period of 30 days;
(d) the Company or any Subsidiary Guarantor defaults in the
performance of or breaches any other covenant or agreement of the
Company contained in the Notes of such series, in the Guarantees or in
this Indenture (other than a default specified in (a) or (b) above) and
the default or breach continues for a period of 60 consecutive days
after written notice to the Company or such Subsidiary Guarantor by the
Trustee or to the
26
Company or such Subsidiary Guarantor and the Trustee by the Holders of
25% or more in principal amount of the Notes of such affected series
then outstanding;
(e) the acceleration of the maturity, or failure to make any
payment when due at the final maturity, of any other Indebtedness of
the Company, any Subsidiary Guarantor or any Restricted Subsidiary
having an outstanding principal amount of $15 million or more
individually or in the aggregate;
(f) judgments or orders for the payment of money in an
aggregate amount in excess of $15 million (net of applicable insurance
coverage which is acknowledged in writing by the insurer) having been
rendered against the Company, any Subsidiary Guarantor or any
Restricted Subsidiary and such judgments or orders shall continue
unsatisfied and unstayed for a period of 60 days;
(g) a Guarantee by a Subsidiary Guarantor shall cease to be in
full force and effect (other than a release of a Guarantee in
accordance with this Indenture or any supplemental indenture) or any
Subsidiary Guarantor shall deny or disaffirm its obligations with
respect thereto;
(h) there has been an entry of a decree or order by a court
having jurisdiction in the premises adjudging the Company, any
Subsidiary Guarantor or any Restricted Subsidiary as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustments or composition of or in
respect of the Company, any Subsidiary Guarantor or any Restricted
Subsidiary under the Federal Bankruptcy Code or any other applicable
federal or state law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company, any
Subsidiary Guarantor or any Restricted Subsidiary or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 90 consecutive days;
(i) the Company, any Subsidiary Guarantor or any Restricted
Subsidiary institute proceedings to be adjudicated as bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or file a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal or state law, or consent to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company, any
Subsidiary Guarantor or any Restricted Subsidiary or of any substantial
part of its property, or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts
generally as they become due (an event of default specified in clause
(g) or (h) a "Bankruptcy Default").
Section 6.02. Acceleration.
(a) If an Event of Default (other than a Bankruptcy Default)
with respect to the Notes of any series occurs and is continuing under
the Indenture, unless the principal of all the Notes of such series
have already become due and payable, the Trustee or the Holders of at
least 25% in principal amount of the Notes of such series then
outstanding
27
(each such series voting as a separate class), by written notice to the
Company (and to the Trustee if the notice is given by the Holders),
may, and the Trustee at the request of such Holders shall, declare the
principal of, premium, if any, and accrued interest on the Notes to be
immediately due and payable (or if the Notes of such series are
Original Discount Notes, such portion of the principal amount as may be
specified in the terms of such series). Upon a declaration of
acceleration, such principal and interest will become immediately due
and payable. If a Bankruptcy Default occurs and is continuing with
respect to the Company, the principal of, premium, if any, and accrued
interest on all Notes of each series then outstanding (or if the Notes
of such series are Original Discount Notes, such portion of the
principal amount as may be specified in the terms of such series) will,
unless the principal of all the Notes of such series shall have already
become due and payable, become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
(b) At any time after such a declaration of acceleration with
respect to the Notes of a series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided, the Holders of a majority in principal amount of
outstanding Notes of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue interest on all the Notes of
such series;
(B) the principal of, and premium, if any,
on any of the Notes of such series which has become
due otherwise than by such declaration of
acceleration, and interest thereon at the rate or
rates prescribed therefor in such Notes;
(C) to the extent that payment of such
interest is lawful and applicable, interest upon
overdue installments of interest at the rate or rates
prescribed therefor in such Notes; and
(D) all sums paid or advanced by the Trustee
under this Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel;
(ii) such rescission would not conflict with any
judgment or decree of a court of competent jurisdiction; and
(iii) all Events of Default with respect to the Notes
of such series, other than the non-payment of the principal
of, and interest on, such Notes which have become due solely
by such declaration of acceleration, have been cured or waived
or otherwise remedied in accordance with the provisions of
this Indenture.
28
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Notes of any series because an Event of
Default shall have occurred and be continuing, such declaration of acceleration
shall be automatically annulled if the Indebtedness that is the subject of such
Event of Default has been discharged or the holders thereof have rescinded their
declaration of acceleration in respect of such Indebtedness, and written notice
of such discharge or rescission, as the case may be, shall have been given to
the Trustee by the Company and countersigned by the Holders of such Notes or a
trustee, fiduciary or agent for such Holders within 30 days after such
declaration of acceleration in respect of the Notes of any series, and no other
Event of Default has occurred during such 30-day period which has not been cured
or waived during such period.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Notes shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Notes shall be deemed, for all
purposes hereunder, to be such portion of the principal thereof as shall be due
and payable as a result of such acceleration, and payment of such portion of the
principal thereof as shall be due and payable as a result of such acceleration
together with interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount Notes.
Section 6.03. Other Remedies. If an Event of Default occurs, has not
been waived, and is continuing with respect to the Notes of any series, the
Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any and interest on the Notes of such series or to
enforce the performance of any provision of the Notes of such series or the
Indenture. The Trustee may maintain a proceeding even if it does not possess any
of the Notes of such series or does not produce any of them in the proceeding.
Section 6.04. Waiver of Past Defaults. Except as otherwise provided in
Sections 6.02, 6.07 and 9.02, the Holders of a majority in aggregate principal
amount of the outstanding Notes may, by notice to the Trustee, waive an existing
Default and its consequences. Upon such waiver, the Default will cease to exist,
any Event of Default arising therefrom will be deemed to have been cured and
each of the Company, the Subsidiary Guarantors, if any, the Trustee and the
Holders of the Notes will be restored to their former positions and rights
hereunder; provided, however, that no such waiver will extend to any subsequent
or other Default or impair any right consequent thereon.
Section 6.05. Control by Majority. The Holders of a majority in
aggregate principal amount of the outstanding Notes of a particular series (or
if more than one series is affected, of all such series voting as a separate
class) 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 the Trustee. The Trustee may, however, refuse to follow any such direction
that conflicts with law or this Indenture, that may involve the Trustee in
personal liability, or that the Trustee determines in good faith may be unduly
prejudicial to the rights of Holders of Notes of such series not joining in the
giving of such direction, and may take any other action it deems proper that is
not inconsistent with such direction.
29
Section 6.06. Limitation on Suits. A Holder may not pursue any proceeding,
judicial or otherwise, or the appointment of a receiver or trustee, or any other
remedy under the Indenture or the Notes of the applicable series, unless:
(a) the Holder has previously given to the Trustee written notice of
a continuing Event of Default;
(b) Holders of at least 25% in principal amount of then outstanding
Notes of the series in respect of which the Event of Default has occurred
have made written request to the Trustee to pursue a remedy in respect of
the Event of Default;
(c) such Holders have offered and, if requested, provided to the
Trustee indemnity and security reasonably satisfactory to the Trustee
against any costs, liabilities or expenses to be incurred in compliance
with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to pursue any such remedy; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes of such series have
not given the Trustee a direction that is inconsistent with such written
request.
The foregoing limitations do not apply to the right of any Holder to
receive payment of principal of, premium, if any, or interest on any series of
Notes or to bring suit for the enforcement of any payment on or after the due
date, which right shall not be impaired or affected without the consent of the
Holder.
No Holder of any series of Notes may use this Indenture to affect, disturb
or prejudice the rights of another Holder of Notes of that series or to obtain a
preference or priority over another Holder of Notes of that series (it being
understood that the Trustee does not have an affirmative duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders).
Section 6.07. Rights of Holders to Receive Payment. Notwithstanding
anything herein to the contrary, the right of any Holder to receive payment of
principal of and premium, if any, and interest on its Note on or after the
Stated Maturities thereof, or to bring suit for the enforcement of any such
payment on or after such respective dates, may not be impaired or affected
without the consent of that Holder.
Section 6.08. Collection Suit by Trustee. If an Event of Default in
payment of principal or interest specified in clause (a) or (b) of Section 6.01
occurs and is continuing with respect to the Notes of any series, upon the
demand of the Trustee, the Company will pay to the Trustee for the benefit of
the Holders of any affected series of Notes the premium, if any, and interest
remaining unpaid on the Notes of that series then outstanding, together with
interest on overdue principal and, to the extent lawful, overdue installments of
interest, in each case at the rate specified in the Notes, and such further
amount as is sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee hereunder.
If the
30
Company fails to pay such amount upon demand by the Trustee, the Trustee will be
empowered to recover judgment in its own name and as trustee of an express trust
the sums so due and payable.
Section 6.09. Trustee May File Proofs of Claim. The Trustee may file
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
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee hereunder) and the
Holders allowed in any judicial proceedings relating to the Company, the
Subsidiary Guarantors, if applicable, or their respective creditors or property,
and is entitled and empowered to collect, receive and distribute any money,
securities or other property payable or deliverable upon any such claims. Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, if the Trustee consents to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee hereunder. Nothing in the Indenture will be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities. If the Trustee collects any money with respect
to Notes of any series pursuant to this Article, it shall pay out the money in
the following order:
(a) First, to the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
7.07;
(b) Second, in accordance with the subordination provisions, if any,
of the Notes of such series;
(c) Third, in case the principal of the Notes of such series in
respect of which monies have been collected shall not have become and be
then due and payable, to the payment of interest on the Notes of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or yield to maturity (in the case of
Original Issue Discount Notes) specified in such Notes, such payments to
be made ratably to the Persons entitled thereto, without discrimination or
preference;
(d) Fourth, in case the principal of the Notes of such series in
respect of which monies have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Notes of such series for
31
principal and interest, with interest upon the overdue principal, and (to
the extent such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest or yield
to maturity (in the case of Original Issue Discount Notes) specified in
the Notes of such series; and in case such monies shall be insufficient to
pay in full the whole amount so due and unpaid upon the Notes of such
series, then to the payment of such principal and interest, without
preference or priority of principal over interest or yield to maturity, or
of interest or yield to maturity over principal, or of any installment of
interest over any other installment of interest, or of any Notes of such
series over any other Notes of such series, ratably to the aggregate of
such principal and accrued and unpaid interest or yield to maturity; and
(e) Fifth, to the Company or such other Person as a court of
competent jurisdiction may direct.
The Trustee, upon written notice to the Company, may fix a record date and
payment date for any payment to Holders pursuant to this Section.
Section 6.11. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted a proceeding to enforce any right or remedy under the
Indenture and the proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to the Holder, then, subject
to any determination in the proceeding, the Company, the Subsidiary Guarantors,
the Trustee and the Holders will be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Company, the Subsidiary Guarantors, the Trustee and the Holders will continue as
though no such proceeding had been instituted.
Section 6.12. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under the Indenture or in any suit against the Trustee for
any action taken or omitted to be taken by it as Trustee, all parties to this
Indenture agree, and each Holder shall be deemed to have agreed, that a court
may require any party litigant in such suit (other than the Trustee) to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant (other than the Trustee) in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by a Holder to enforce payment of principal,
premium, if any, and interest on any Note of any series on the respective due
dates, or a suit by Holders of more than 10% in principal amount of the
outstanding Notes of any series.
Section 6.13. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement of lost, destroyed or wrongfully taken Notes of
any series in Section 2.04, no right or remedy conferred or reserved to the
Trustee or to the Holders under this Indenture is intended to be exclusive of
any other right or remedy, and all such rights and remedies are, to the extent
permitted by law, cumulative and in addition to every other right and remedy
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or exercise of any right or remedy hereunder, or otherwise, will not
prevent the concurrent assertion or exercise of any other right or remedy.
32
Section 6.14. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default will impair the exercise of 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 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 6.15. Waiver of Stay, Extension or Usury Laws. Each of the Company
and the Subsidiary Guarantors, if any, covenants, to the extent that it may
lawfully do so, that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay 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, premium, if any, or interest on the Notes of any series as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
that may affect the covenants or the performance of the Indenture. The Company
hereby expressly waives, to the extent that it may lawfully do so, 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 if no such law had been enacted.
ARTICLE VII.
THE TRUSTEE
Section 7.01. General.
(a) The duties and responsibilities of the Trustee are as provided
by the Trust Indenture Act and as set forth herein. Whether or not
expressly so provided, every provision of the Indenture relating to the
conduct or affecting the liability of or affording protection to the
Trustee is subject to this Article.
(b) Except during the continuance of an Event of Default with
respect to the Notes of any series, the Trustee need perform only those
duties that are specifically set forth in the Indenture and no others, and
no implied covenants or obligations will be read into the Indenture that
are adverse to the Trustee. In case an Event of Default has occurred and
is continuing with respect to the Notes of any series, the Trustee shall
exercise those rights and powers vested in it by the Indenture, and use
the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of the Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct.
Section 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act
Section 315(a) through (d):
(a) In the absence of negligence or willful misconduct on its part,
the Trustee may conclusively rely, and will be protected in acting or
refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
33
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter stated
in the document, but, in the case of any document which is specifically
required to be furnished to the Trustee pursuant to any provision hereof,
the Trustee shall examine the document to determine whether it conforms to
the requirements of the Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein). The
Trustee, in its discretion, may make further inquiry or investigation into
such facts or matters as it sees fit.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel conforming to Section
13.05, and the Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on the certificate or opinion.
(c) The Trustee may act through its attorneys and agents and will
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by the Indenture at the request or direction
of any of the Holders of any series of Notes, unless such Holders have
offered to the Trustee reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities that might be incurred by it
in compliance with such request or direction.
(e) The Trustee will not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance
with the direction of the Holders of any series of Notes in accordance
with Section 6.05 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture.
(f) The Trustee may consult with counsel, and the advice of such
counsel or any Opinion of Counsel will be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(g) No provision of this Indenture will require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of its duties hereunder, or in the exercise of its rights
or powers, unless it receives indemnity satisfactory to it against any
loss, liability or expense.
(h) The Trustee shall not be deemed to have notice of any default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at its Corporate Trust Office
and such notice references the Notes and this Indenture.
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(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its rights to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder.
(j) In no event shall the Trustee be responsible or liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether
the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(k) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not superseded.
Section 7.03. Individual Rights of Trustee. The Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not the Trustee. Any Agent may do the same with like rights. The
Trustee is, however, subject to Trust Indenture Act Section 311. For purposes of
Trust Indenture Act Sections 311(b)(4) and (6):
(a) "Cash Transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand; and
(b) "Self-Liquidating Paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by
the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise
and which is secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor relationship
arising from the making, drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation.
Section 7.04. Trustee's Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of the Indenture or the Notes of
any series, (ii) is not accountable for the Company's use or application of the
proceeds from the Notes of any series, and (iii) is not responsible for any
statement in the Notes of any series other than its certificate of
authentication.
Section 7.05. Notice of Default. If any Default or Event of Default occurs
and is continuing with respect to the Notes of any series, and if it is known to
the Trustee, the Trustee will send notice of the uncured Default to each Holder
of the Notes of such series within five days after it occurs, unless the Default
has been cured; provided that, except in the case of a
35
default in the payment of the principal of, premium, if any, or interest on any
such Note, 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 good faith determines that withholding the notice is in the interest
of the Holders. Notice to Holders under this Section will be given in the manner
and to the extent provided in Trust Indenture Act Section 313(c); and provided
further that in the case of any Default of the character specified in Section
6.01(4) no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. Except in the case of an Event of Default resulting from
nonpayment on any Note, the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.
Section 7.06. Reports by Trustee to Holders. The Trustee shall transmit to
each Holder such reports concerning, among other things, the Trustee and its
action under this Indenture as may be required pursuant to the Trust Indenture
Act at the time and in compliance with Section 313(a) of the Trust Indenture
Act. The Trustee also shall comply with Sections 313(b)(2) and 313(c) of the
Trust Indenture Act. A copy of each such report at the time of its mailing to
Noteholders shall be filed with the Commission and each stock exchange, if any,
on which the Notes of any series are listed. The Company shall notify the
Trustee in writing if the Notes of any series become listed on any stock
exchange or any delisting thereof.
Section 7.07. Compensation and Indemnity.
(a) The Company and the Subsidiary Guarantors, if applicable,
jointly and severally, will pay the Trustee from time to time such
compensation as shall be agreed upon in writing for its services. The
compensation of the Trustee is not limited by any law on compensation of a
Trustee of an express trust. The Company and the Subsidiary Guarantors, if
applicable, will reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee while acting as Trustee under this Indenture, including the
reasonable compensation, disbursements and expenses of the Trustee's
attorneys, accountants, experts and other such professionals as the
Trustee deems necessary, advisable or appropriate, except any such expense
as shall be determined to have been caused by its own negligence or
willful misconduct.
(b) The Company and the Subsidiary Guarantors, if applicable, will
jointly and severally indemnify the Trustee and any predecessor Trustee
(which for purposes of this Section 7.07 shall include its officers,
directors, employees, agents and shareholders) for, and hold it harmless
against, any and all loss, damage, claim or liability or expense
(including the reasonable fees and expenses of counsel and taxes other
than those based upon the income of the Trustee) incurred by it without
negligence or willful misconduct on its part arising out of or in
connection with the acceptance or administration of the Indenture and its
duties under the Indenture and the Notes of each series, including the
costs and expenses of defending itself against any claim (whether asserted
by the Company, any Holder or any Person) or liability and of complying
with any process served upon it or any of its officers in connection with
the exercise or performance of any
36
of its powers or duties under the Indenture and any such Notes. When the
Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(7) and (8) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
(c) The obligations of the Company and the Subsidiary Guarantors, if
applicable, under this Section shall not be subordinated to the payment of
Senior Indebtedness pursuant to Article XI hereof and shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. To secure the Company's and the Subsidiary
Guarantors', if applicable, payment obligations in this Section, the
Trustee will have a lien prior to the Notes of each series on all money or
property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of, premium, if
any, and interest on particular Notes of any series.
Section 7.08. Replacement of Trustee.
(a) (i) The Trustee may resign at any time by written notice to the
Company.
(i) The Holders of a majority in aggregate principal amount of
the outstanding Notes of all series for which any one Trustee is
acting as Trustee (voting as a single class) may remove such Trustee
by written notice to the Company and the Trustee.
(ii) If the Trustee is no longer eligible under Section 7.10
or in the circumstances described in Trust Indenture Act Section
310(b), any Holder that satisfies the requirements of Trust
Indenture Act Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(iii) The Company may remove the Trustee if: (i) the Trustee
is no longer eligible under Section 7.10; (ii) the Trustee is
adjudged a bankrupt or an insolvent; (iii) a receiver or other
public officer takes charge of the Trustee or its property; or (iv)
the Trustee becomes incapable of acting.
A resignation or removal of the Trustee and appointment of a successor
Trustee will become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
(b) If the Trustee has been removed by the Holders, Holders of a
majority in principal amount of the outstanding Notes of all series for
which the Trustee was acting as Trustee (voting as a single class) may
appoint a successor Trustee for all such series with the consent of the
Company. Otherwise, if the Trustee resigns or is removed, or if a vacancy
exists in the office of Trustee for any reason, the Company will promptly
appoint a successor Trustee. If the successor Trustee does not deliver its
written acceptance within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
aggregate principal amount of the
37
outstanding Notes of all series for which such Trustee was acting as
Trustee (voting as a single class) may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) Upon delivery by the successor Trustee of a written acceptance
of its appointment to the retiring Trustee and to the Company, (i) the
retiring Trustee will upon payment of charges hereunder transfer all
property held by it as Trustee to the successor Trustee, subject to the
lien provided for in Section 7.07(c), (ii) the resignation or removal of
the retiring Trustee will become effective, and (iii) the successor
Trustee will have all the rights, powers and duties of the Trustee under
the Indenture. Upon request of any successor Trustee, the Company will
execute any and all instruments for fully vesting in and confirming to the
successor Trustee all such rights, powers and trusts. The successor
Trustee will mail notice of any resignation and any removal of the Trustee
and its appointment to all Holders, and include in the notice its name and
the address of its Corporate Trust Office.
(d) Notwithstanding replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 will continue for
the benefit of the retiring Trustee.
(e) The Trustee agrees to give the notices provided for in, and
otherwise comply with, Trust Indenture Act Section 310(b).
Section 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act will, if such resulting, surviving
or transferee corporation or national banking association is otherwise eligible
under the Indenture, be the successor Trustee with the same effect as if the
successor Trustee had been named as the Trustee in the Indenture.
Section 7.10. Eligibility. The Indenture must always have a Trustee that
satisfies the requirements of Trust Indenture Act Section 310(a) and (b) and has
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition.
Section 7.11. Money Held in Trust. The Trustee will not be liable for
interest on any money received by it except as it may agree with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law and except for money held in trust under
Article XI.
ARTICLE VIII.
DEFEASANCE AND DISCHARGE
Section 8.01. Discharge of Company's Obligations.
(a) Subject to paragraph (b) of this Section 8.01, the Company's
obligations under any series of Notes and this Indenture will terminate
if:
38
(i) all Notes of such series previously authenticated and
delivered (other than (A) destroyed, lost or stolen Notes of such
series that have been replaced or (B) Notes of such series that are
paid pursuant to Section 4.01 or (C) Notes of such series for whose
payment money or U.S. Government Obligations have been held in trust
and then repaid to the Company pursuant to Section 8.05) have been
delivered to the Trustee for cancellation and the Company has paid
all sums payable by it hereunder, or the Notes of such series not
theretofore delivered to the Trustee have become due and payable, or
mature within one year, or all of them are to be called for
redemption within one year under arrangements satisfactory to the
Trustee for giving the notice of redemption; and
(ii) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of
such Notes, money or U.S. Government Obligations or a combination
thereof sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certificate
delivered to the Trustee, without consideration of any reinvestment,
to pay principal of, premium, if any, and each installment of
interest on such Notes to maturity or redemption, as the case may
be, and to pay all other sums payable by it hereunder; and
(iii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(iv) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the
satisfaction and discharge of the Indenture have occurred.
(b) After satisfying the conditions in clause (i), only the
Company's obligations under Section 7.07 will survive. After satisfying
the conditions in clause (ii), only the Company's obligations in Article
II, Sections 4.01, 4.02, 7.07, 7.08 and this Article VIII, and the rights,
powers, trusts, duties and immunities of the Trustee hereunder will
survive such satisfaction and discharge. In either case, upon request, the
Trustee will acknowledge in writing the discharge of the Company's
obligations under the Notes of such series and the Indenture other than
the surviving obligations.
Section 8.02. Legal Defeasance. Unless this Section 8.02 is otherwise
specified to be inapplicable to Notes of any series pursuant to Section 2.01(1),
after the 91st day following the deposit referred to in clause (a) of this
Section 8.02, the Company will be deemed to have paid and will be discharged
from its obligations in respect of the Notes of such series and the Indenture
(as it relates to the Notes of such series), other than its obligations in
Article II, Sections 4.01, 4.02, 7.07, 7.08, and this Article VIII and the
rights, powers, trusts, duties and immunities of the Trustee hereunder, provided
the following conditions have been satisfied:
(a) The Company has irrevocably deposited in trust with the Trustee,
as trust funds solely for the benefit of the Holders of Notes of such
series, money or U.S. Government Obligations or a combination thereof
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written
39
certificate thereof delivered to the Trustee, without consideration of any
reinvestment, to pay principal of, premium, if any, and each installment
of interest on the Notes of such series to maturity or redemption, as the
case may be, provided that any redemption before maturity has been
irrevocably provided for under arrangements satisfactory to the Trustee.
(b) No Default or event that with the passing of time or the giving
of notice, or both, would constitute an Event of Default, has occurred and
is continuing on the date of the deposit.
(c) The deposit will not result in a breach or violation of, or
constitute a default under, the Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound.
(d) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance have
occurred.
(e) The Company has delivered to a Responsible Officer of the
Trustee:
(i) an Opinion of Counsel stating either that (A) the Company
has received from or there has been published by the Internal
Revenue Service a ruling or (B) there has been a change in law after
the date of this Indenture to the effect that the Holders of the
Notes of such series will not recognize gain or loss for federal
income tax purposes as a result of the deposit, defeasance and
discharge and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would
otherwise have been the case, and
(ii) an Opinion of Counsel to the effect that after the
passage of 91 days following the deposit, the trust funds will not
be subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law.
(f) Such defeasance shall not cause the Trustee to have a
conflicting interest, as determined by the Trustee, with respect to any
securities of the Company.
Prior to the end of the 91-day period, none of the Company's obligations
under the Indenture will be discharged. Thereafter, upon request, the Trustee
will acknowledge in writing the discharge of the Company's obligations under the
Notes of such series and the Indenture (as it relates to the Notes of such
series) except for the surviving obligations set forth in this Section 8.02.
Section 8.03. Covenant Defeasance. Unless this Section 8.03 is otherwise
specified to be inapplicable to the Notes of any series pursuant to Section
2.01(1), after the 91st day following the deposit referred to in clause (a) of
Section 8.02, the Company's obligations set forth in Article V will terminate,
and clauses (c), (d), (e), (f), (g) and (h) of Section 6.01 will no longer
constitute Events of Default, provided the Company has complied with Section
8.02. Notwithstanding the foregoing, for purposes of this Section 8.03, the
Opinion of Counsel
40
required pursuant to Section 8.02(e)(i) does not need to be based upon either an
Internal Revenue Service ruling or a change in law after the date of this
Indenture.
Except as specifically stated in this Section 8.03, none of the Company's
obligations under the Indenture will be discharged as a result of covenant
defeasance pursuant to this Section 8.03.
Section 8.04. Application of Trust Money. Subject to Section 8.05, the
Trustee will hold in trust the money or U.S. Government Obligations deposited
with it pursuant to Section 8.01, 8.02 or 8.03, and apply the deposited money
and the proceeds from deposited U.S. Government Obligations to the payment of
principal of, premium, if any, and interest on the series of Notes for which
such deposit was made in accordance with the Notes of such series and the
Indenture. Such money and U.S. Government Obligations need not be segregated
from other funds except to the extent required by law.
Section 8.05. Repayment to Company. Subject to Sections 7.07, 8.01, 8.02
or 8.03, the Trustee will promptly pay to the Company upon request any excess
money or U.S. Government Obligations held by the Trustee at any time and
thereupon be relieved from all liability with respect to such money. The Trustee
will pay to the Company upon request any money or U.S. Government Obligations
held for payment with respect to the Notes of any series that remains unclaimed
for two years; provided that before making such payment the Trustee may at the
expense of the Company publish once in a newspaper of general circulation in New
York City, or send to each Holder entitled to such money, notice that the money
remains unclaimed and that after a date specified in the notice (at least 30
days after the date of the publication or notice) any remaining unclaimed
balance of money will be repaid to the Company. After payment to the Company,
Holders entitled to such money must look solely to the Company for payment,
unless applicable law designates another Person, and all liability of the
Trustee with respect to such money will cease.
Section 8.06. Reinstatement. If and for so long as the Trustee is unable
to apply any money or U.S. Government Obligations held in trust pursuant to
Section 8.01, 8.02 or 8.03 by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations under the
Indenture (with respect to the applicable series of Notes) and the Notes of the
applicable series will be reinstated as if no such deposit in trust had been
made. If the Company makes any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, it will
be subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government obligations held in trust.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
the Subsidiary Guarantors, if any, and when authorized by a Board Resolution,
and the Trustee, at any time and
41
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another corporation to the Company
or any Subsidiary Guarantor and the assumption by such successor of the
covenants of the Company herein and in the Notes;
(b) to add to the covenants of the Company or any Subsidiary
Guarantor for the benefit of the Holders of all or any series of Notes
(and, if such covenants are to be for the benefit of less than all series
of Notes, stating that such covenants are expressly being included solely
for the benefit of such series), or to surrender any right or power herein
conferred upon the Company or any Subsidiary Guarantor;
(c) to add any additional Events of Default (and, if such Events of
Default are to be applicable to less than all series of Notes, stating
that such Events of Default are expressly being included solely to be
applicable to such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular grace period after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of the series of Notes
to which such additional Events of Default apply to waive such default;
(d) to change or eliminate any restrictions on the payment of
principal (or premium, if any) of Notes, provided that any such action
shall not adversely affect the interests of the Holders of Notes of any
series in any material respect;
(e) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no outstanding Note of any series created prior to the
execution of such supplemental indenture that is entitled to the benefit
of such provision;
(f) to establish the form or terms of Notes of any series as
permitted by Section 2.01;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes of one or more
series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee;
(h) to add to the provisions of this Indenture relating to the
Guarantees, including additional subordination provisions;
(i) to reflect the addition or release of any Subsidiary Guarantor,
as provided for by this Indenture;
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(j) to provide for uncertificated outstanding Notes in addition to
or in the place of outstanding Notes;
(k) to supplement any of the provisions of the Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Notes pursuant to Sections 8.01, 8.02 or 8.03;
provided that any such action shall not adversely affect the interests of
the Holders of Notes of such series or any other series of Notes in any
material respect;
(l) to cure any ambiguity or omission, to correct or supplement any
provision herein that may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture that shall not be inconsistent
with any provisions of this Indenture; provided such other provisions
shall not adversely affect the interests of the Holders of Notes of any
series in any material respect;
(m) to secure the Notes;
(n) to make any changes that would provide any additional rights or
benefits to Holders of Notes or that do not adversely affect the rights of
any such Holder in any material respect;
(o) to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act;
(p) to provide for the conversion rights of Holders of Notes in
certain events such as an amalgamation, consolidation, merger or sale of
all or substantially all of the assets of the Company; or
(q) to reduce the conversion price, if applicable, of any series of
Notes.
Section 9.02. Supplemental Indentures with Consent of Holders.
(a) Except as provided in Section 9.01, with the consent of the
Holders of not less than a majority in principal amount of the outstanding
Notes affected by such supplemental indenture, by act of such Holders
delivered to the Company and the Trustee, the Company when authorized by a
Board Resolution, the Subsidiary Guarantors, if any and when authorized by
a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders under
this Indenture of such Notes; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each outstanding
Note affected thereby:
(i) reduce the percentage of principal amount of outstanding
Notes whose Holders may consent to an amendment, supplement or
waiver;
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(ii) reduce the rate or change the time or times for payment
of interest, including default interest, on any outstanding Note;
(iii) reduce the principal amount of any Note or change the
Maturity Date of the Notes;
(iv) reduce the redemption price, including premium, if any,
payable upon redemption of any Note or change the time or times at
which any Note may or shall be redeemed;
(v) reduce the repurchase price, including premium, if any,
payable upon the repurchase of any Note;
(vi) make any Note payable in money other than that stated in
the Note;
(vii) impair the right to institute suit for the enforcement
of principal of, premium, if any, or interest on any Note; or
(viii) make any change in the percentage of principal amount
of Notes necessary to amend or waive compliance in Section 6.04 or
Section 6.07 or in this sentence of this Section 9.02.
(b) In addition, any amendment to, or waiver of, the provisions of
this Indenture relating to subordination of any Notes that adversely
affects the rights of the Holders of the outstanding Notes of such series
will require the consent of the Holders of at least 75% in aggregate
principal amount of outstanding Notes of such series then outstanding.
(c) It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
(d) A supplemental indenture that changes or eliminates any covenant
or other provisions of this Indenture that has expressly been included
solely for the benefit of one or more particular series of Notes, or that
modifies the rights of the Holders of Notes of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Notes of any other series.
(e) After an amendment, modification or waiver under this Section
becomes effective, the Company will send to the Holders affected thereby a
notice briefly describing the amendments, modification or waiver. The
Company will send supplemental indentures to Holders upon request. Any
failure of the Company to send such notice, or any defect therein, will
not, however, in any way impair or affect the validity of any such
amendment, modification, supplemental indenture or waiver.
Section 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article (other than Section 9.01(f)) or the modifications thereby of the
trusts created by this Indenture, the Trustee
44
shall be provided with and, subject to Section 7.02, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, is not
inconsistent herewith, is a valid, legal and binding obligation of the Company
and any Subsidiary Guarantor enforceable in accordance with its terms, subject
to enforceability being limited by bankruptcy, insolvency or other laws or
foreign governmental actions affecting the enforcement of creditors' rights
generally and equitable remedies including the remedies of specific performance
and injunction being granted only in the discretion of a court of competent
jurisdiction and, in connection with a supplemental indenture executed pursuant
to Section 9.01, that the Trustee is authorized to execute and deliver such
supplemental indenture without the consent of the Holders and, in connection
with a supplemental indenture executed pursuant to Section 9.02, that the
requisite consents of the Holders have been validly obtained in accordance with
Section 9.02 hereof. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of a series of Notes affected by
the supplemental indenture theretofore or thereafter authenticated and delivered
under this Indenture shall be bound by the supplemental indenture.
Section 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 9.06. Reference in Notes to Supplemental Indentures. Notes of any
series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Notes of any
series so modified as to conform to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for outstanding Notes of such series.
ARTICLE X.
SINKING FUNDS
Section 10.01. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Notes of a series
except as otherwise specified pursuant to Section 2.01 for Notes of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Notes of any series is herein referred to as "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided for by the terms of
Notes of any series is herein referred to as an "optional sinking fund payment".
If provided for by the terms of Notes of any series, the amount of any sinking
fund payment may be subject to reduction as provided in Section 10.02. Each
sinking fund payment shall be applied to the redemption of Notes of any series
as provided for by the terms of such Notes.
45
Section 10.02. Satisfaction of Sinking Fund Payments with Notes. In lieu
of making all or part or any mandatory sinking fund payment in cash, the Company
may deliver outstanding Notes of a series (other than any previously called for
redemption) and may apply as a credit Notes of a series that have been redeemed
either at the election of the Company pursuant to the terms of such Notes or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Notes, in each case, in satisfaction of all or any part of any
sinking fund payment with respect to such Notes of such series required to be
made pursuant to, and as provided for by, their terms; provided that such Notes
have not been previously so credited. Such Notes shall be received and credited
for such purpose by the Trustee at the redemption price specified in such Notes
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 10.03. Redemption of Notes for Sinking Fund. Not less than 60 days
prior to each sinking fund payment date for any series of Notes (unless a
shorter period shall be satisfactory to the Trustee), the Company will deliver
to the Trustee an Officers' Certificate of such entity specifying the amount of
the next sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, that is to be satisfied by delivering and
crediting Notes of that series pursuant to Section 10.02 and the basis for any
such credit and, prior to or concurrently with the delivery of such Officers'
Certificate, also will deliver to the Trustee any Notes to be credited and not
theretofore delivered to the Trustee. Not less than 45 days (unless a shorter
period shall be satisfactory to the Trustee) before each sinking fund payment
date the Trustee shall select the Notes to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.01 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.01. Such notice having been duly given, the
redemption of such Notes shall be made upon the terms and in the manner stated
in Sections 3.01 and 3.02.
ARTICLE XI.
SUBORDINATION OF NOTES
Section 11.01. Applicability of Article; Agreement to Subordinate Notes to
Senior Indebtedness. In the event a series of Notes is designated as
subordinated pursuant to Section 2.01 ("Subordinated Notes") and except as
otherwise provided in a supplemental indenture or pursuant to Section 2.01, the
Company, for itself, its successors and assigns, covenants and agrees, and each
Holder of Subordinated Notes by his acceptance thereof, likewise covenants and
agrees, that the payment of the principal of, premium, if any, and interest on
each and all of the Subordinated Notes is hereby expressly subordinated, to the
extent and in the manner set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
This Article XI shall constitute a continuing offer to all Persons
who become holders of, or continue to hold, Senior Indebtedness, and such
provisions are made for the benefit of the holders of Senior Indebtedness, and
such holders are made obligees hereunder and any one or more of them may enforce
such provisions.
Section 11.02. No Payment on Subordinated Notes in Certain Circumstances.
46
Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, unless and until all principal thereof, premium, if
any, interest thereon and other amounts due thereon shall first be paid in full,
no payment shall be made by or on behalf of the Company with respect to the
principal of, premium, if any, interest on or other amounts owing on the
Subordinated Notes (except that, subject to applicable law, Holders may receive
Subordinated Securities of the Company).
Upon the happening of any default in the payment of any principal of
or interest on or other amounts due on any Senior Indebtedness (a "Payment
Default"), then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no payment shall be made by or on behalf of the
Company with respect to the principal of, premium, if any, interest on or other
amounts owing on the Subordinated Notes.
Upon the happening of any default or event of default (other than a
Payment Default) (including any event which with the giving of notice or the
lapse of time or both would become an event of default and including any default
or event of default which would result upon any payment with respect to the
Subordinated Notes) with respect to any Designated Senior Indebtedness, as such
default or event of default is defined therein or in the instrument or agreement
or other document under which it is outstanding, then upon written notice
thereof given to the Company and the Trustee by a holder or holders of any such
Designated Senior Indebtedness or their representative ("Payment Notice"), no
payment shall be made by or on behalf of the Company with respect to the
principal of, premium, if any, interest on or other amounts owing on the
Subordinated Notes during the period (the "Payment Blockage Period") commencing
on the date of such receipt of such Payment Notice and ending on the earlier of
(i) the date, if any, on which such default is cured or waived or ceases to
exist or (ii) the date, if any, on which the Designated Senior Indebtedness to
which such default relates is discharged, provided, however, that no default or
event of default (other than a Payment Default) shall prevent the making of any
payment for more than 179 days after the Payment Notice shall have been given.
Notwithstanding the foregoing, (i) not more than one Payment Notice shall be
given within a period of 360 consecutive days, (ii) no event of default which
existed or was continuing on the date of any Payment Notice shall be made the
basis for the giving of a subsequent Payment Notice unless all such events of
default shall have been cured or waived for a period of at least 180 consecutive
days after such date, and (iii) if the Company or the Trustee receives any
Payment Notice, a similar notice relating to or arising out of the same default
or facts giving rise to such default (whether or not such default is on the same
issue of Designated Senior Indebtedness) shall not be effective for purposes of
this paragraph.
The Company shall resume payments of principal of, premium, if any,
and interest on the Subordinated Notes (i) in the case of a Payment Default,
upon the date such Payment Default is cured or waived by the holders of Senior
Indebtedness to which such Payment Default relates and (ii) in the case of a
default or event of default (other than a Payment Default) with respect to
Designated Senior Indebtedness, on the earlier of (A) the date such default or
event of default is cured or (B) the expiration of the Payment Blockage Period
with respect thereto if, in the case of this clause (B), this Article XI
otherwise does not prohibit such payment.
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In furtherance of the provisions of Section 11.01, in the event
that, notwithstanding the foregoing provisions of this Section 11.02, any
payment (other than a payment in the form of Subordinated Securities) with
respect to the principal of, premium, if any, or interest on the Notes shall be
made by or on behalf of the Company, and received by the Trustee, by any Holder
or by any such Paying Agent (or, if the Company is acting as its own Paying
Agent, money for any such payment shall be segregated and held in trust), at a
time when such payment was prohibited by the provisions of this Section 11.02,
then, unless and until such payment is no longer prohibited by this Section
11.02, such payment (subject to the provisions of Sections 11.06 and 11.07)
shall be received and held in trust by the Trustee or such Holder or Paying
Agent for the benefit of and shall be immediately paid over to the holders of
Senior Indebtedness or their representative, ratably according to the aggregate
amounts remaining unpaid on account of the principal of, premium, if any, and
interest on the Senior Indebtedness held or represented by each, for application
to the payment of all Senior Indebtedness in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of Senior Indebtedness.
The provisions of this Section 11.02 shall not modify or limit in
any way the application of Section 11.03.
The Company shall give prompt written notice to the Trustee of any
default in the payment of any Senior Indebtedness or any acceleration under any
Senior Indebtedness or under any agreement pursuant to which Senior Indebtedness
may have been issued. Failure to give such notice shall not affect the
subordination of the Subordinated Notes to the Senior Indebtedness or the
application of the other provisions provided in this Article XI.
Section 11.03. Subordinated Notes Subordinated to Prior Payment of All
Senior Indebtedness on Dissolution, Liquidation or Reorganization of the
Company.
In the event of any Insolvency or Liquidation Proceeding with
respect to the Company, all amounts payable in respect of any Senior
Indebtedness shall first be paid in full before the Holders of Subordinated
Notes are entitled to receive any direct or indirect payment or distribution of
any cash, property or securities (other than Subordinated Securities of the
Company) on account of principal of or interest on the Subordinated Notes or any
other payment with respect to the Notes.
The holders of Senior Indebtedness shall be entitled to receive
directly, for application to the payment of Senior Indebtedness (to the extent
necessary to pay in full all Senior Indebtedness, whether or not due, including
specifically, without limitation, all Post-Commencement Interest, whether or not
allowed as a claim in such Insolvency or Liquidation Proceedings, after giving
effect to any substantially concurrent payment or distribution to the holders of
Senior Indebtedness on account of Senior Indebtedness), any payment or
distribution of any kind or character, whether in cash, property or securities
(other than Subordinated Securities of the Company), including any payment or
distribution which may be payable or deliverable by reason of the payment of any
other Indebtedness of the Company being subordinated to the payment of the
Subordinated Notes which may be payable or deliverable in respect of the
Subordinated Notes in any such Insolvency or Liquidation Proceeding.
48
In the event that, notwithstanding the foregoing provisions of this
Section 11.03, the Trustee or any Paying Agent or the Holder of any Subordinated
Note shall have received any payment from or distribution of assets of the
Company or the estate created by the commencement of any such Insolvency or
Liquidation Proceeding, of any kind or character in respect of the Subordinated
Notes, whether in cash, property or securities (other than Subordinated
Securities of the Company), including any payment or distribution which may be
payable or deliverable by reason of the payment of any other Indebtedness of the
Company being subordinated to the payment of the Subordinated Notes, before all
Senior Indebtedness (whether or not due including specifically, without
limitation, all Post-Commencement Interest, whether or not allowed as a claim in
such Insolvency or Liquidation Proceeding) is paid in full, then and in such
event such payment or distribution shall be received and held in trust by the
Trustee, any such Paying Agent or Holder for and shall be paid over to the
holders of Senior Indebtedness (to the extent necessary to pay in full all such
Senior Indebtedness, whether or not due, including specifically, without
limitation, all Post-Commencement Interest thereon, whether or not allowed as a
claim in such Insolvency or Liquidation Proceeding), after giving effect to any
substantially concurrent payment or distribution to the holders of Senior
Indebtedness on account of Senior Indebtedness, for application to the payment
in full of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
Insolvency or Liquidation Proceeding with respect to it.
Section 11.04. Holders of Subordinated Notes to be Subrogated to Rights of
Holders of Senior Indebtedness.
After all amounts payable under or in respect of Senior Indebtedness
(whether or not due) are paid in full, the Holders of Subordinated Notes shall
be subrogated (without any duty on the part of the holders of Senior
Indebtedness to warrant, create, effectuate, preserve or protect such
subrogation), to the extent of the payments or distributions made to the holders
of Senior Indebtedness pursuant to the provisions of this Article XI (equally
and ratably with the holders of all other indebtedness of the Company which by
its express terms is subordinate and subject in right of payment to Senior
Indebtedness to substantially the same extent as the Subordinated Notes are so
subordinate and subject in right of payment and which is entitled to like rights
of subrogation), to the rights of the holders of Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness, until the principal of, and premium, if any, and interest
on the Subordinated Notes shall be paid in full. For the purpose of such
subrogation no such payments or distributions to the holders of Senior
Indebtedness by or on behalf of the Company, or by or on behalf of the Holders
by virtue of this Article XI, which otherwise would have been made to the
Holders shall, as between the Company and the Holders of the Subordinated Notes,
be deemed to be payment by the Company to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article XI are and
are intended solely for the purpose of defining the relative rights of the
Holders of Subordinated Notes, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
Section 11.05. Obligations of the Company Unconditional.
49
Nothing contained in this Article XI or elsewhere in this Indenture
or in any Subordinated Note is intended to or shall impair, as between the
Company and the Holders of the Subordinated Notes, the obligations of the
Company, which are absolute and unconditional, to pay to the Holders of the
Subordinated Notes the principal of and premium, if any, and interest on the
Subordinated Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall effect the relative
rights of the Holders of Subordinated Notes and creditors of the Company, other
than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder of any Subordinated Note from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article XI, of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any distribution of
assets of the Company referred to in this Article XI, the Trustee, subject to
the provisions of Section 7.01, and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
Insolvency or Liquidation Proceeding is pending, or a certificate of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XI.
Section 11.06. Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee in respect of the Subordinated Notes, unless and until the Trustee
or any Paying Agent shall have received written notice from the Company or from
one or more holders of Senior Indebtedness or from any representative therefor
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 7.01, shall be entitled in all respects conclusively
to assume that no such facts exist. Nothing in this Section 11.06 is intended to
or shall relieve any Holder of Subordinated Notes from the obligations imposed
under Sections 11.02 and 11.03 with respect to money or other distributions
received in violation of the provisions thereof.
Section 11.07. Application by Trustee of Assets Deposited With It.
All money and U.S. Government Obligations deposited in trust with
the Trustee pursuant to and in accordance with Section 8.01 shall be for the
sole benefit of the Holders and shall not be subject to this Article XI.
Otherwise, any deposit of assets by the Company with the Trustee or any Paying
Agent (whether or not in trust) for the payment of principal of, premium, if
any, or interest on any Subordinated Notes shall be subject to the provisions of
this Article XI; provided that, if prior to the second Business Day preceding
the date on which by the terms of this Indenture any such assets may become
distributable for any purpose (including without limitation, the payment of the
principal of (and premium, if any, of interest on any Subordinated Note) the
Trustee or such Paying Agent shall not have received with respect to such assets
the written notice provided for in Section 11.06, then the Trustee or such
Paying Agent shall have full power and authority to receive such assets and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such date. The preceding sentence shall be construed solely for the
50
benefit of the Trustee and each Paying Agent and shall not otherwise affect the
rights of holders of Senior Indebtedness.
Section 11.08. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness.
No right of any present or future holder of any Senior Indebtedness
to enforce the subordination provisions in this Article XI shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
The holders of Senior Indebtedness may extend, renew, modify or amend the terms
of the Senior Indebtedness or any security therefor and release, sell or
exchange such security and otherwise deal freely with the Company, all without
affecting the liabilities and obligations of the parties to this Indenture or
the Holders of the Subordinated Notes.
Section 11.09. Holders Authorize Trustee to Effectuate Subordination of
Subordinated Notes.
Each Holder of Subordinated Notes by his acceptance thereof (a)
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article XI and to protect the rights of the Holders of Subordinated Notes
pursuant to this Indenture, and (b) appoints the Trustee his attorney-in-fact
for such purpose, including in the event of any Insolvency or Liquidation
Proceeding with respect to the Company, the timely filing of a claim for the
unpaid balance of his Subordinated Notes in the form required in such proceeding
and the causing of such claim to be approved. If the Trustee shall not file a
proper claim or proof of debt in the form required in such proceeding prior to
30 days before the expiration of the time to file such claim or claims, then the
holders of the Senior Indebtedness or their representative shall have the right
to file an appropriate claim for and on behalf of the Holders of Subordinated
Notes. Nothing herein contained shall be deemed to authorize the Trustee or any
holder of Senior Indebtedness or their representative to authorize or consent to
or accept or adopt on behalf of any Holder of Subordinated Notes any plan of
reorganization, arrangement, adjustment or composition affecting the
Subordinating Notes or the rights of any Holder of Subordinated Notes, or to
authorize the Trustee or any holder of Senior Indebtedness or their
representative to vote in respect of the claim of any Holder of Subordinated
Notes in any such proceeding.
Section 11.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article XI in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Section 11.11. Article Eleven Not to Prevent Events of Default.
51
The failure to make a payment of principal of, premium, if any, or
interest on the Subordinated Notes by reason of any provision of this Article XI
shall not be construed as preventing the occurrence of a Default or an Event of
Default.
Section 11.12. Payment.
A payment with respect to a Subordinated Note or with respect to
principal of or interest on a Subordinated Note shall include, without
limitation, payment of, principal of, premium, if any, and interest on any
Subordinated Note, any depositing of funds under Article VIII, any payment on
account of any mandatory or optional repurchase or redemption of any
Subordinated Note (including payments pursuant to Article III) and any payment
or recovery on any claim and any payment or recovery on any claim (whether for
rescission or damages and whether based on contract, tort, duty imposed by law,
or any other theory of liability) relating to or arising out of the offer, sale
or purchase of any Subordinated Note, provided that any such payment, deposit,
other payment or recovery (a) not prohibited pursuant to this Article XI at the
time actually made shall not be subject to any recovery by any holder of Senior
Indebtedness or representative therefor or other Person pursuant to this Article
XI at any time thereafter and (b) made by or from any Person other than the
Company shall not be subject to any recovery by any holder of Senior
Indebtedness or representative therefor or other Person pursuant to this Article
XI at any time thereafter except to the extent such Person recovers any such
amount paid from the Company, whether pursuant to rights of indemnity,
rescission or otherwise.
Section 11.13. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Notes or to the Company or to any other Person cash, property or securities to
which any holders of Senior Indebtedness shall be entitled to by virtue of this
Article or otherwise. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
Nothing in this Article shall apply to the claims of, or payments to,
the Trustee under or pursuant to Section 7.07.
ARTICLE XII.
SUBSIDIARY GUARANTEES
Section 12.01. Unconditional Guarantees.
(a) If any Notes of or within a series are specified to be
guaranteed by the Subsidiary Guarantors, then each of the Subsidiary
Guarantors hereby fully and unconditionally guarantees, jointly and
severally, to each Holder of any such Note which is authenticated and
delivered by the Trustee and to the Trustee for itself and on behalf of
each such Holder, the due and punctual payment of the principal of,
premium, if any, and interest (including, in case of default, interest
on principal and, to the extent permitted by applicable law, on overdue
interest, and including any additional interest required to be
52
paid according to the terms of any such Note), if any, on each such
Note, and the due and punctual payment of any sinking fund payment (or
analogous obligation), if any, provided for with respect to any such
Note, when and as the same shall become due and payable, whether at
Stated Maturity, upon redemption, upon acceleration, upon tender for
repayment at the option of any Holder or otherwise, according to the
terms thereof and of this Indenture and all other obligations of the
Company hereunder (the "Guarantor Obligations"). In case of the failure
of the Company or any successor thereto punctually to pay any such
principal, premium, interest or sinking fund payment, each of the
Subsidiary Guarantors hereby agrees to cause any such payment to be
made punctually when and as the same shall become due and payable,
whether at Stated Maturity, upon redemption, upon declaration of
acceleration, upon tender for repayment at the option of any Holder or
otherwise, as if such payment were made by the Company.
(b) Each of the Subsidiary Guarantors hereby agrees that its
Guarantor Obligations hereunder shall be as if it were principal debtor
and not merely surety and shall be absolute and unconditional,
irrespective of the identity of the Company, the validity, regularity
or enforceability of any such Note or this Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of
any such Note with respect to any provisions thereof, the recovery of
any judgment against the Company or any action to enforce the same, or
any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Subsidiary Guarantor. Each of the
Subsidiary Guarantors 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 its Guarantee will not be discharged except by complete
performance of its obligations contained in any such Note and in its
Guarantee.
(c) If the Trustee or the Holder of any Note is required by
any court or otherwise to return to the Company or any Subsidiary
Guarantor, or any custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official acting in relation to the
Company or such Subsidiary Guarantor, any amount paid to the Trustee or
such Holder in respect of a Note, the related Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
Each of the Subsidiary Guarantors further agrees, to the fullest extent
that it may lawfully do so, that, as between such Subsidiary Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand,
the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article VI hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition under any
applicable bankruptcy law preventing such acceleration in respect of
the obligations guaranteed hereby.
(d) Each of the Subsidiary Guarantors shall be subrogated to
all rights of the Holders of the Notes of a series against the Company
in respect of any amounts paid by such Subsidiary Guarantor on account
of such Notes or this Indenture; provided, however, that such
Subsidiary Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until
the principal of,
53
premium, if any, and interest, if any, on all Notes of such series
shall have been indefeasibly paid in full.
Section 12.02. Execution and Delivery of Guarantees.
(a) To evidence the Guarantees with respect to Notes of or
within any series that are specified to be guaranteed by the Subsidiary
Guarantors, each of the Subsidiary Guarantors hereby agrees to execute
its Guarantee, in a form established pursuant to Section 2.01, to be
endorsed on each Note of such series authenticated and delivered by the
Trustee. Each such Guarantee shall be executed on behalf of such
Subsidiary Guarantor by two Officers. The signature of any of these
Officers on the Guarantees may be manual or facsimile.
(b) Any Guarantee bearing the manual or facsimile signatures
of the individuals who were the proper Officers of any Subsidiary
Guarantor shall bind such Subsidiary Guarantor, notwithstanding that
such individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of the Notes upon which such
Guarantee are endorsed or did not hold such offices at the date of such
Notes.
(c) The delivery of any Notes by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantees endorsed thereon on behalf of the Subsidiary Guarantors.
Each of the Subsidiary Guarantors hereby agrees that its Guarantee set
forth in this Article XII shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Guarantee.
Section 12.03. Limitation of Guarantor's Liability. Each of the
Subsidiary Guarantors, and by its acceptance of a Note each Holder, hereby
confirms that it is the intention of all such parties that in no event shall any
Guarantor Obligations under the Guarantees constitute or result in a fraudulent
transfer or conveyance for purposes of, or result in a violation of, any United
States federal, or applicable United States state, fraudulent transfer or
conveyance or similar law. To effectuate the foregoing intention, in the event
that the Guarantor Obligations of any Subsidiary Guarantor in respect of the
Notes of any series would, but for this sentence, constitute or result in such a
fraudulent transfer or conveyance or violation, then the liability of such
Subsidiary Guarantor under its Guarantee in respect of the Notes of such series
shall be reduced to the extent necessary to eliminate such fraudulent transfer
or conveyance or violation under the applicable fraudulent transfer or
conveyance or similar law.
Section 12.04. Subordination of Guarantees. If any Notes of or within a
series specified to be guaranteed by the Subsidiary Guarantors are Subordinated
Notes, then each of the Subsidiary Guarantors hereby agrees that the Guarantees
are subordinated to the same extent and subject to the same terms, conditions,
restrictions and limitations as apply to the Company with respect to the
Subordinated Notes in Article XI of this Indenture.
54
ARTICLE XIII.
MISCELLANEOUS
Section 13.01. Trust Indenture Act of 1939. The Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
Section 13.02. Noteholder Communications; Noteholder Actions.
(a) The rights of Holders to communicate with other Holders
with respect to the Indenture or the Notes are as provided by the Trust
Indenture Act, and the Company, the Subsidiary Guarantors and the
Trustee shall comply with the requirements of Trust Indenture Act
Sections 312(a) and 312(b). Neither the Company, the Subsidiary
Guarantors, nor the Trustee will be held accountable by reason of any
disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
(b) Any request, demand, authorization, direction, notice,
consent to amendment, modification or waiver or other action provided
by this Indenture to be given or taken by a Holder (an "Act") may be
evidenced by an instrument signed by the Holder delivered to the
Trustee. The fact and date of the execution of the instrument, or the
authority of the Person executing it, may be proved in any manner that
the Trustee deems sufficient.
(c) The Trustee may make reasonable rules for action by or at
a meeting of Holders of any one or more series of Notes, which will be
binding on all the Holders of such Notes.
(d) The ownership of Notes shall be proved by the Register.
(e) Any Act by the Holder of any Note binds that Holder and
every subsequent Holder of a Note that evidences the same debt as the
Note of the acting Holder, even if no notation thereof appears on the
Note. Subject to Section 13.02(f), a Holder may revoke an Act as to its
Notes, but only if the Trustee receives the notice of revocation before
the date the amendment or waiver or other consequence of the Act
becomes effective.
(f) The Company or any Subsidiary Guarantor may, but is not
obligated to, fix a record date (which need not be within the time
limits otherwise prescribed by Trust Indenture Act Section 316(c)) for
the purpose of determining the Holders entitled to Act with respect to
any amendment or waiver or in any other regard, except that during the
continuance of an Event of Default, only the Trustee may set a record
date as to notices of default, any declaration or acceleration or any
other remedies or other consequences of the Event of Default. If a
record date is fixed, those Persons that were Holders at such record
date and only those Persons will be entitled to Act, or to revoke any
previous Act, whether or not those Persons continue to be Holders after
the record date. No Act will be valid or effective for more than 90
days after the record date.
55
Section 13.03. Notices.
(a) Any notice or communication to the Company or any
Subsidiary Gurantor will be deemed given if in writing (i) when
delivered in person or (ii) five days after mailing when mailed by
first class mail, or (iii) when sent by facsimile transmission, with
transmission confirmed. Any notice or communication to the Trustee will
be deemed given if in writing (i) when delivered in person, or (ii)
when sent by facsimile transmission, with transmission confirmed. In
each case the notice or communication should be addressed as follows:
if to the Company or any Subsidiary Guarantor:
Giant Industries, Inc.
23733 N. Scottsdale Road
Scottsdale, Arizona 85255
Fax: (480) 585-8893
Attention: Chief Financial Officer and General Counsel
if to the Trustee:
The Bank of New York
101 Barclay Street, 8 West
New York, New York 10286
Fax: (212) 815-5707
Attention: Corporate Trust Administration
The Company, any Subsidiary Guarantor or the Trustee by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(b) Except as otherwise expressly provided with respect to
published notices, any notice or communication to a Holder will be
deemed given when mailed to the Holder at its last address as it
appears on the Register by first class mail or, as to any Global Note
registered in the name of DTC or its nominee, as agreed by the Company,
the Trustee and DTC. Copies of any notice or communication to a Holder,
if given by the Company or any Subsidiary Guarantor, will be mailed to
the Trustee at the same time. Defect in mailing a notice or
communication to any particular Holder will not affect its sufficiency
with respect to other Holders.
(c) Where the Indenture provides for notice, the notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and the waiver will be the equivalent of the
notice. Waivers of notice by Holders must be filed with the Trustee,
but such filing is not a condition precedent to the validity of any
action taken in reliance upon such waivers.
Section 13.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company or any Subsidiary Guarantor to the
Trustee to take any action under
56
the Indenture, the Company or such Subsidiary Guarantor will furnish to a
Responsible Officer of the Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in the
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that all such conditions
precedent have been complied with.
Section 13.05. Statements Required in Certificate or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
condition or covenant provided for in the Indenture must include:
(a) a statement that each Person signing the Officers'
Certificate or Opinion of Counsel has read the covenant or condition
and the related definitions;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in the Officers' Certificate or Opinion of Counsel is based;
(c) a statement that, in the opinion of each such Person, that
Person has made such examination or investigation as is necessary to
enable the Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with,
provided that an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials with respect to matters
of fact.
Section 13.06. Payment Date Other Than a Business Day. If any payment
with respect to a payment of any principal of, premium, if any, or interest on
any Note (including any payment to be made on any date fixed for redemption or
purchase of any Note) is due on a day which is not a Business Day, then the
payment need not be made on such date, but may be made on the next Business Day
with the same force and effect as if made on such date, and no interest will
accrue for the intervening period.
Section 13.07. Governing Law; Waiver of Jury Trial. This Indenture and
the Notes shall be governed by, and construed in accordance with, the laws of
the State of New York without giving effect to applicable principles of
conflicts of laws thereof. EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 13.08. No Adverse Interpretation of Other Agreements. The
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any
57
Subsidiary of the Company, and no such indenture or loan or debt agreement may
be used to interpret the Indenture.
Section 13.09. Successors. All agreements of the Company and the
Subsidiary Guarantors in the Indenture, the Notes and the Guarantees, as the
case may be, will bind their respective successors. All agreements of the
Trustee in the Indenture will bind its successor.
Section 13.10. Duplicate Originals. The parties may sign any number of
copies of the Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 13.11. Separability. In case any provision in the Indenture or
in the Notes is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
Section 13.12. Table of Contents and Headings. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of the Indenture
have been inserted for convenience of reference only, are not to be considered a
part of the Indenture and in no way modify or restrict any of the terms and
provisions of the Indenture.
Section 13.13. No Liability of Directors, Officers, Employees,
Incorporators and Stockholders. No director, officer, employee, incorporator,
member or stockholder of the Company or any Subsidiary will have any liability
for any obligations of the Company or any Subsidiary Guarantor under the Notes,
the Guarantees or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused the Indenture to be
duly executed as of the date first written above.
COMPANY:
GIANT INDUSTRIES, INC.
By:
--------------------------------------
Name:
Title:
SUBSIDIARY GUARANTORS:
GIANT INDUSTRIES ARIZONA, INC.
By:
--------------------------------------
Name:
Title:
CINIZA PRODUCTION COMPANY
By:
--------------------------------------
Name:
Title:
GIANT STOP-N-GO OF NEW MEXICO, INC.
By:
--------------------------------------
Name:
Title:
59
GIANT FOUR CORNERS, INC.
By:
--------------------------------------
Name:
Title:
PHOENIX FUEL CO., INC.
By:
--------------------------------------
Name:
Title:
SAN JUAN REFINING COMPANY
By:
--------------------------------------
Name:
Title:
GIANT MID-CONTINENT, INC.
By:
--------------------------------------
Name:
Title:
GIANT PIPELINE COMPANY
By:
--------------------------------------
Name:
Title:
60
GIANT YORKTOWN, INC.
By:
--------------------------------------
Name:
Title:
GIANT YORKTOWN HOLDING COMPANY
By:
--------------------------------------
Name:
Title:
TRUSTEE:
THE BANK OF NEW YORK
By:
--------------------------------------
Name:
Title:
EXHIBIT A
For Global Note only: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITORY", WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITORY FOR THE
CERTIFICATES), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY (AND ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), 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.