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EXHIBIT 4.8
GIANT INDUSTRIES, INC.,
as Issuer,
THE SUBSIDIARY GUARANTORS,
as Guarantors,
and
THE BANK OF NEW YORK,
as Trustee
INDENTURE
DATED AS OF AUGUST 26, 1997
$150,000,000
9% SENIOR SUBORDINATED NOTES DUE 2007
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE ................................ 1
Section 1.01. Definitions ................................................ 1
Section 1.02. Other Definitions .......................................... 12
Section 1.03. Incorporation by Reference of Trust Indenture Act .......... 12
Section 1.04. Rules of Construction ...................................... 13
ARTICLE TWO
THE SECURITIES ............................................................ 13
Section 2.01. Form and Dating ............................................ 13
Section 2.02. Execution and Authentication ............................... 14
Section 2.03. Registrar and Paying Agent ................................. 15
Section 2.04. Paying Agent to Hold Money In Trust ........................ 15
Section 2.05. Lists of Holders of Securities ............................. 16
Section 2.06. Transfer and Exchange ...................................... 16
Section 2.07. Replacement Securities ..................................... 20
Section 2.08. Outstanding Securities; Treasury Securities ................ 20
Section 2.09. Temporary Securities and Definitive Notes .................. 21
Section 2.10. Cancellation ............................................... 21
Section 2.11. Defaulted Interest ......................................... 22
Section 2.12. CUSIP Number ............................................... 22
Section 2.13. Persons Deemed Owners ...................................... 22
ARTICLE THREE
REDEMPTION ................................................................ 22
Section 3.01. Notice to Trustee .......................................... 22
Section 3.02. Selection of Securities to Be Redeemed ..................... 22
Section 3.03. Notice of Redemption ....................................... 22
Section 3.04. Effect of Notice of Redemption ............................. 23
Section 3.05. Deposit of Redemption Price ................................ 23
Section 3.06. Securities Redeemed in Part ................................ 24
ARTICLE FOUR
COVENANTS ................................................................. 24
Section 4.01. Payment of Securities ...................................... 24
Section 4.02. Commission Reports ......................................... 24
Section 4.03. Compliance Certificates .................................... 25
Section 4.04. Maintenance of Office or Agency ............................ 25
Section 4.05. Corporate Existence ........................................ 26
Section 4.06. Waiver of Stay, Extension or Usury Laws .................... 26
Section 4.07. Payment of Taxes and Other Claims .......................... 26
Section 4.08. Maintenance of Properties and Insurance; Line of Business... 26
Section 4.09. Limitation on Incurrence of Additional Indebtedness ........ 27
Section 4.10. Limitation on Restricted Payments .......................... 27
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Section 4.11. Limitation on Sale of Assets ....................................... 28
Section 4.12. Limitation on Liens Securing Indebtedness .......................... 31
Section 4.13. Limitation on Payment Restrictions Affecting Restricted Subsidiaries 31
Section 4.14. Limitation on Transactions with Affiliates ......................... 31
Section 4.15. Limitation on Future Senior Subordinated Indebtedness .............. 32
Section 4.16. Change of Control .................................................. 32
ARTICLE FIVE
SUCCESSOR CORPORATION ............................................................. 33
Section 5.01. When Company May Merge, etc ........................................ 33
Section 5.02. Successor Corporation Substituted .................................. 33
ARTICLE SIX
DEFAULTS AND REMEDIES ............................................................. 34
Section 6.01. Events of Default .................................................. 34
Section 6.02. Acceleration ....................................................... 35
Section 6.03. Other Remedies ..................................................... 36
Section 6.04. Waiver of Past Defaults ............................................ 36
Section 6.05. Control by Majority ................................................ 36
Section 6.06. Limitation on Remedies ............................................. 36
Section 6.07. Rights of Holders to Receive Payment ............................... 37
Section 6.08. Collection Suit by Trustee ......................................... 37
Section 6.09. Trustee May File Proofs of Claim ................................... 37
Section 6.10. Priorities ......................................................... 37
Section 6.11. Undertaking for Costs .............................................. 37
ARTICLE SEVEN
TRUSTEE ........................................................................... 38
Section 7.01. Duties of Trustee .................................................. 38
Section 7.02. Rights of Trustee .................................................. 38
Section 7.03. Individual Rights of Trustee ....................................... 39
Section 7.04. Trustee's Disclaimer ............................................... 39
Section 7.05. Notice of Defaults ................................................. 39
Section 7.06. Reports by Trustee to Holders ...................................... 39
Section 7.07. Compensation and Indemnity ......................................... 40
Section 7.08. Replacement of Trustee ............................................. 41
Section 7.09. Successor Trustee by Merger, etc ................................... 41
Section 7.10. Eligibility; Disqualification ...................................... 41
Section 7.11. Preferential Collection of Claims Against Company .................. 41
ARTICLE EIGHT
DISCHARGE OF INDENTURE ............................................................ 42
Section 8.01. Termination of Company's Obligations ............................... 42
Section 8.02. Application of Trust Money ......................................... 43
Section 8.03. Repayment to Company ............................................... 43
Section 8.04. Reinstatement ...................................................... 43
Section 8.05. Survival of Certain Obligations .................................... 43
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS .......................................................... 44
Section 9.01. Without Consent of Holders .................................................... 44
Section 9.02. With Consent of Holders ....................................................... 44
Section 9.03. Compliance with Trust Indenture Act ........................................... 45
Section 9.04. Revocation and Effect of Consents ............................................. 45
Section 9.05. Notation on or Exchange of Securities ......................................... 46
Section 9.06. Trustee Protected ............................................................. 46
ARTICLE TEN
SUBORDINATION OF SECURITIES .................................................................. 46
Section 10.01. Securities Subordinated to Senior Indebtedness ............................... 46
Section 10.02. No Payment on Securities in Certain Circumstances ............................ 47
Section 10.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of the Company... 48
Section 10.04. Holders to Be Subrogated to Rights of Holders of Senior Indebtedness ......... 48
Section 10.05. Obligations of the Company Unconditional ..................................... 49
Section 10.06. Trustee Entitled to Assume Payments, Not Prohibited in Absence of Notice ..... 49
Section 10.07. Application by Trustee of Assets Deposited With It ........................... 49
Section 10.08. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness .................................... 50
Section 10.09. Holders Authorize Trustee to Effectuate Subordination of Securities .......... 50
Section 10.10. Right of Trustee to Hold Senior Indebtedness ................................. 50
Section 10.11. Article Ten Not to Prevent Events of Default ................................. 50
Section 10.12. Payment ...................................................................... 50
Section 10.13. Trustee Not Fiduciary for Holders of Senior Indebtedness ..................... 51
ARTICLE ELEVEN
GUARANTEES ................................................................................... 51
Section 11.01. Unconditional Guarantee ...................................................... 51
Section 11.02. Subsidiary Guarantors May Consolidate. etc., on Certain Terms ................ 52
Section 11.03. Addition of Subsidiary Guarantors ............................................ 52
Section 11.04. Release of a Subsidiary Guarantor ............................................ 53
Section 11.05. Limitation of Subsidiary Guarantor=s Liability ............................... 53
Section 11.06. Contribution ................................................................. 53
Section 11.07. Execution and Delivery of Guarantee .......................................... 53
Section 11.08. Severability ................................................................. 54
Section 11.09. Consent to Jurisdiction and Service of Process ............................... 54
Section 11.10. Waiver of Immunity ........................................................... 54
Section 11.11. Judgment Currency ............................................................ 54
ARTICLE TWELVE
SUBORDINATION OF GUARANTEES .................................................................. 55
Section 12.01. Guarantees Subordinated to Senior Indebtedness ............................... 55
Section 12.02. No Payment on Guarantees in Certain Circumstances ............................ 55
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Section 12.03. Guarantees Subordinated to Prior Payment of All Senior Indebtedness
on Dissolution, Liquidation or Reorganization of a Subsidiary Guarantor... 56
Section 12.04. Holders to Be Subrogated to Rights of Holders of Senior Indebtedness ..... 57
Section 12.05. Guarantees Unconditional ................................................. 57
Section 12.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice... 57
Section 12.07. Application by Trustee of Assets Deposited With It ....................... 58
Section 12.08. Subordination Rights Not Impaired by Acts or Omissions of the
Subsidiary Guarantors or Holders of Senior Indebtedness .................. 58
Section 12.09. Holders Authorize Trustee to Effectuate Subordination of Securities ...... 58
Section 12.10. Right of Trustee to Hold Senior Indebtedness ............................. 58
Section 12.11. Payment .................................................................. 59
Section 12.12. Trustee Not Fiduciary for Holders of Senior Indebtedness ................. 59
ARTICLE THIRTEEN
MISCELLANEOUS ............................................................................ 59
Section 13.01. Trust Indenture Act Controls ............................................. 59
Section 13.02. Notices .................................................................. 59
Section 13.03. Communication by Holders with Other Holders .............................. 60
Section 13.04. Certificate and Opinion as to Conditions Precedent ....................... 60
Section 13.05. Statements Required in Certificate or Opinion ............................ 60
Section 13.06. Rules by Trustee and Agents .............................................. 61
Section 13.07. Legal Holidays ........................................................... 61
Section 13.08. Governing Law ............................................................ 61
Section 13.09. No Adverse Interpretation of Other Agreements ............................ 61
Section 13.10. No Recourse Against Others ............................................... 61
Section 13.11. Successors ............................................................... 61
Section 13.12. Duplicate Originals ...................................................... 61
Section 13.13. Severability ............................................................. 61
Exhibit A - Form of Initial Note
Exhibit B - Form of Exchange Note
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CROSS-REFERENCE TABLE
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- --------------- ---------
310(a)(1) ............................................ 7.10
(a)(2) ............................................ 7.10
(a)(3) ............................................ N/A
(a)(4) ............................................ N/A
(a)(5) ............................................ 7.10
(b) ............................................... 7.08; 7.10
(c) ............................................... N/A
311(a) ............................................... 7.11
(b) ............................................... 7.11
(c) ............................................... N/A
312(a) ............................................... 2.05
(b) ............................................... 13.03
(c) ............................................... 13.03
313(a) ............................................... 7.06
(b)(1) ............................................ N/A
(b)(2) ............................................ 7.06
(c) ............................................... 7.06; 13.02
(d) ............................................... 7.06
314(a) ............................................... 4.02; 4.03; 13.02
(b) ............................................... N/A
(c)(1) ............................................ 13.04
(c)(2) ............................................ 13.04
(c)(3) ............................................ N/A
(d) ............................................... N/A
(e) ............................................... 13.05
(f) ............................................... N/A
315(a) ............................................... 7.01(b)
(b) ............................................... 7.05; 13.02
(c) ............................................... 7.01(a)
(d) ............................................... 7.01(c)
(e) ............................................... 6.11
316(a)(1)(A) ......................................... 6.05
(a)(1)(B) ......................................... 6.02; 6.04; 9.02
(a)(2) ............................................ N/A
(b) ............................................... 6.07
(c) ............................................... N/A
317(a)(1) ............................................ 6.08
(a)(2) ............................................ 6.09
(b) ............................................... 2.04
318(a) ............................................... 13.01
(b) ............................................... N/A
(c) ............................................... 13.01
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N/A means Not Applicable
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NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
INDENTURE, dated as of August 26, 1997, 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.
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the holders of the Company's 9% Senior
Subordinated Notes due 2007.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean the
lesser of (i) the amount by which the fair value of the property of such
Subsidiary Guarantor exceeds the total amount of liabilities of such Subsidiary
Guarantor, including, without limitation, contingent liabilities (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date), but excluding liabilities under the Guarantee of such Subsidiary
Guarantor at such date and (ii) the amount by which the present fair saleable
value of the assets of such Subsidiary Guarantor at such date exceeds the amount
that will be required to pay the probable liability of such Subsidiary Guarantor
on its debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date and after giving effect to any collection from
any Subsidiary of such Subsidiary Guarantor in respect of the obligations of
such Subsidiary under the Guarantee), excluding debt in respect of the
Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means any sale, capitalized lease (in accordance with GAAP),
transfer, exchange or other disposition (or series of related sales, capitalized
leases (in accordance with GAAP), transfers, exchanges or dispositions) of
shares of Capital Stock of a Subsidiary (other than directors' qualifying
shares), or of property or assets or any interests therein (each referred to for
purposes of this definition as a "disposition") by the Company or any of its
Restricted Subsidiaries, including any disposition by means of a merger,
consolidation or similar transaction (other than (i) by the Company to a
Restricted Subsidiary or by a Subsidiary to the Company or to a Restricted
Subsidiary, (ii) a sale of inventory or hydrocarbons or other products
(including both crude and refined products), in each case in the ordinary course
of business of the Company's operations, (iii) the merger or consolidation of,
or the disposition of all or substantially all of the assets of, the Company
made in compliance with Article Five of this Indenture and (iv) the merger or
consolidation of a Restricted Subsidiary made in compliance with the
requirements set forth in Section 11.02(b)(i)(A)).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness, the quotient obtained by dividing (i) the sum of the products of
(A) the number of years from such date to the date of each successive scheduled
principal payment of such Indebtedness multiplied by (B) the amount of such
principal payment by (ii) the sum of all such principal payments.
"Bank Credit Facility" means a revolving credit and/or letter of credit
and/or bankers' acceptance facility, the proceeds of which are used for working
capital and other general corporate purposes existing on the Issue Date or
entered into after the Issue Date by one or more of the Company and/or its
Subsidiaries and one or more financial institutions, as amended, extended or
refinanced from time to time.
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"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized to act on behalf of the Board of Directors of such
Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Borrowing Base" means, as of any date, an amount equal to the sum of (i)
85% of the book value of all accounts receivable owned by the Company and its
Restricted Subsidiaries (excluding any accounts receivable from an Affiliate of
the Company or that are more than 90 days past due, less (without duplication)
the allowance for doubtful accounts attributable to such current accounts
receivable) and (ii) 60% of the book value of all inventory owned by the Company
and its Restricted Subsidiaries as of such date, all calculated on a
consolidated basis and in accordance with GAAP. To the extent that information
is not available as to the amount of accounts receivable as of a specific date,
the Company may utilize the most recent available information for purposes of
calculating the Borrowing Base.
"Business Day" means any day on which the New York Stock Exchange, Inc.
is open for trading and which is not a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock or partnership interests and any and all warrants, options and rights with
respect thereto (whether or not currently exercisable), including each class of
common stock and preferred stock of such Person.
"Capitalized Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under a lease of property, real or
personal, that is required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Change of Control" means any event or series of events by which (i) any
"Person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act) of 50% or more of the total voting power of the Voting Stock
of the Company; (ii) the Company consolidates with or merges or amalgamates with
or into another Person or conveys, transfers, or leases all or substantially all
of its assets to any Person, or any Person consolidates with, or merges or
amalgamates with or into the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is changed into
or exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding Voting Stock of the Company is changed
into or exchanged for Voting Stock of the surviving corporation which is not
Disqualified Stock and (B) the holders of the Voting Stock of the Company
immediately prior to such transaction own, directly or indirectly, not less than
a majority of the Voting Stock of the surviving corporation immediately after
such transaction; (iii) the stockholders of the Company approve any plan of
liquidation or dissolution of the Company; or (iv) during any period of twelve
consecutive months, individuals who at the beginning of such period constituted
the Board of Directors of the Company (or whose appointment or nomination for
election by the stockholders of the Company was approved by a vote of not less
than a majority of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office.
"Commission" means the Securities and Exchange Commission.
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"Company" means the party named as such above, until a successor replaces
such Person in accordance with the terms of this Indenture, and thereafter means
such successor.
"Consolidated Coverage Ratio" means, for any Reference Period, the ratio
on a pro forma basis of (i) Consolidated EBITDA for such Reference Period to
(ii) Consolidated Interest Expense for such Reference Period; provided, that, in
calculating Consolidated EBITDA and Consolidated Interest Expense (A) with
respect to any acquisition which occurs during the Reference Period or
subsequent to the Reference Period and on or prior to the date of the incurrence
of Indebtedness or issuance of Disqualified Stock giving rise to the need to
calculate the Consolidated Coverage Ratio (the "Debt Incurrence Date"), such
acquisition shall be assumed to have occurred on the first day of the Reference
Period, (B) with respect to the incurrence of any Indebtedness (including the
sale of the Securities) or issuance of any Disqualified Stock during the
Reference Period or subsequent to the Reference Period and on or prior to the
Debt Incurrence Date, the incurrence of such Indebtedness or the issuance of
such Disqualified Stock shall be assumed to have occurred on the first day of
such Reference Period, (C) any Indebtedness that had been outstanding during the
Reference Period that has been repaid on or prior to the Debt Incurrence Date
shall be assumed to have been repaid as of the first day of such Reference
Period, (D) the Consolidated Interest Expense attributable to interest on any
Indebtedness or dividends on any Disqualified Stock bearing a floating interest
(or dividend) rate shall be computed on a pro forma basis as if the rate in
effect on the Debt Incurrence Date were the average rate in effect during the
entire Reference Period, and (E) in determining the amount of Indebtedness
pursuant to Section 4.09, the incurrence of Indebtedness or issuance of
Disqualified Stock giving rise to the need to calculate the Consolidated
Coverage Ratio and, to the extent the net proceeds from the incurrence or
issuance thereof are used to retire Indebtedness, the application of the
proceeds therefrom, shall be assumed to have occurred on the first day of the
Reference Period.
"Consolidated EBITDA" means, for any Reference Period, the Consolidated
Net Income of the Company and its Restricted Subsidiaries for such Reference
Period, increased (to the extent deducted in determining Consolidated Net
Income) by the sum of: (i) all income taxes of the Company and its Restricted
Subsidiaries paid or accrued according to GAAP for such period (other than
income taxes attributable to extraordinary gains or losses), (ii) all interest
expense of the Company and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (including amortization of original issue
discount and other non-cash interest expense), (iii) depreciation and depletion
of the Company and its Restricted Subsidiaries, (iv) amortization of the Company
and its Restricted Subsidiaries including, without limitation, amortization of
capitalized debt issuance costs; and (v) other non-recurring non-cash charges
(excluding any such non-cash charges to the extent they require an accrual of,
or a reserve for, cash charges for any future periods) to the extent such
non-cash charges are deducted in connection with the determination of
Consolidated Net Income; and (vi) extraordinary losses to the extent deducted in
connection with the determination of Consolidated Net Income.
"Consolidated Interest Expense" means, with respect to the Company and its
Restricted Subsidiaries, for any Reference Period, the aggregate amount (without
duplication) of (i) interest expensed in accordance with GAAP (including, in
accordance with the following sentence, interest attributable to Capitalized
Lease Obligations) during such period in respect of all Indebtedness of the
Company and its Restricted Subsidiaries (including (A) amortization of original
issue discount on any Indebtedness, (B) the interest portion of all deferred
payment obligations, calculated in accordance with GAAP, and (C) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptance financing and currency and interest rate swap arrangements, in each
case to the extent attributable to such Reference Period), and (ii) dividend
requirements of the Company and its Restricted Subsidiaries with respect to
Disqualified Stock of the Company or its Restricted Subsidiaries, whether in
cash or otherwise (except dividends payable solely in shares of Qualified
Stock), paid (other than to the Company or any of its Restricted Subsidiaries),
declared, accrued or accumulated during such period, divided by the difference
of one minus the applicable actual combined federal state, local and foreign
income tax rate of the Company and its Restricted Subsidiaries (expressed as a
decimal), on a consolidated basis, for the four quarters immediately preceding
the date of the transaction giving rise to the need to calculate Consolidated
Interest Expense, in each case to the extent attributable to such Reference
Period and excluding items eliminated in consolidation. For purposes of
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this definition, (i) interest on a Capitalized Lease Obligation shall be deemed
to accrue at an interest rate reasonably determined by the Company to be the
rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP and (ii) interest expense attributable to any Indebtedness represented
by the guarantee by the Company or a Subsidiary of the Company of an obligation
of another Person shall be deemed to be the interest expense attributable to the
Indebtedness guaranteed.
"Consolidated Net Income" means, for any period, the aggregate net income
(or loss) of the Company and its Restricted Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP, provided that (i) the
net income for such period of any Person that is not a Subsidiary or that is
accounted for by the equity method of accounting will be included only to the
extent of the amount of dividends, payments or distributions actually paid to
the Company or its Restricted Subsidiaries by such other Person in such period;
(ii) the net income for such period of any Restricted Subsidiary of the Company
that is subject to any Payment Restriction will be included only to the extent
of the amount of dividends, payments or distributions which (A) are actually
paid by such Restricted Subsidiary in such period to the Company (or another
Restricted Subsidiary which is not subject to a Payment Restriction) and (B) are
not in excess of the amount which such Restricted Subsidiary would be permitted
to pay to the Company (or another Restricted Subsidiary which is not subject to
a Payment Restriction) in any future period under the Payment Restrictions
applicable to such Restricted Subsidiary, assuming that the net income of such
Restricted Subsidiary in each future period is equal to the net Income for such
Restricted Subsidiary for such period; and (iii) the following will be excluded:
(A) the net income (or loss) of any other Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition, (B)
any net gain or loss on the sale or other disposition by the Company or any of
its Restricted Subsidiaries of assets (other than a sale of inventory or
hydrocarbons or other products (including both crude and refined products), in
each case in the ordinary course of business of the Company's operations) and of
the Capital Stock of any Restricted Subsidiary of the Company, (C) extraordinary
gains and (D) any ceiling limitation writedown required in accordance with the
full cost accounting method rules of the Commission.
"Consolidated Net Tangible Assets" means, as of any date, the total assets
of the Company and its Restricted Subsidiaries on a consolidated basis as of
such date (less applicable reserves and other items properly deductible from
total assets) and after deducting therefrom: (i) total liabilities and total
capital items as of such date except the following: items constituting
Indebtedness, paid-in capital and retained earnings, provisions for deferred
income taxes and deferred gains, and reserves which are not reserves for any
contingencies not allocated to any particular purpose; (ii) goodwill, trade
names, trademarks, patents, unamortized debt discount and expense, and other
intangible assets; and (iii) all Investments other than Permitted Investments.
"Consolidated Tangible Net Worth" means, with respect to any Person, as at
any date of determination, the sum of Capital Stock (other than Disqualified
Stock) and paid-in capital plus retained earnings (or minus accumulated deficit)
minus all intangible assets, including, without limitation, organization costs,
patents, trademarks, copyrights, franchise, research and development costs, and
any amount reflected in treasury stock, of such Person determined on a
consolidated basis in accordance with GAAP.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees and their
respective successors.
"Designated Senior Indebtedness" means (i) any Senior Indebtedness of the
Company and/or its Restricted Subsidiaries permitted under this Indenture, the
original principal amount of which is $10 million or more and (ii) the
Indebtedness and/or other obligations under the Bank Credit Facility.
"Disqualified Stock" means any Capital Stock of a Person which, by its
terms (or by terms of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event or with the passage of
time, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable
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at the option of the holder thereof, in whole or in part, on or prior to the
Maturity Date or which is exchangeable or convertible into debt securities of
such Person or any other Person, except to the extent that such exchange or
conversion rights cannot be exercised prior to the Maturity Date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Commission thereunder.
"Exchange Notes" means the 9% Senior Subordinated Notes due 2007 to be
issued pursuant to this Indenture in connection with a Registered Exchange Offer
pursuant to the Registration Rights Agreement.
"Existing Subordinated Notes" means $100,000,000 in original principal
amount of the Company's 9 3/4% Senior Subordinated Notes due 2003.
"GAAP" means generally accepted accounting principles as in effect in the
United States of America from time to time.
"Guarantee" means, individually and collectively, the guarantees given by
the Subsidiary Guarantors pursuant to Article Eleven hereof, including a
notation in the Securities substantially in the form attached hereto as Exhibit
A-1.
"Holder" means a Person in whose name a Security is registered on the
Registrar's books.
"Indebtedness" means, without duplication, with respect to any Person, (i)
all obligations of such Person (A) in respect of borrowed money (whether or not
the recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof), (B) evidenced by bonds, notes, debentures or similar
instruments, (C) representing the balance deferred and unpaid of the purchase
price of any property or services (other than accounts payable or other
obligations arising in the ordinary course of business), (D) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks, (E) for
the payment of money relating to a Capitalized Lease Obligation, or (F)
evidenced by a letter of credit or a reimbursement obligation of such Person
with respect to any letter of credit; (ii) all net obligations of such Person as
of the date of a required calculation under interest swap obligations and
foreign currency hedges; (iii) all liabilities of others of the kind described
in the preceding clauses (i) or (ii) that such Person has guaranteed or that are
otherwise its legal liability; (iv) Indebtedness (as otherwise defined in this
definition) of another Person secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person, the amount of such
obligations being deemed to be the lesser of (A) the full amount of such
obligations so secured, and (B) the fair market value of such asset, as
determined in good faith by the Board of Directors of such Person, which
determination shall be evidenced by a Board Resolution of such Person; (v) the
liquidation preference and any mandatory redemption payment obligations in
respect of Disqualified Stock of such Person; and (vi) any and all deferrals,
renewals, extensions, refinancings and refundings (whether direct or indirect)
of, or amendments, modifications or supplements to, any liability of the kind
described in any of the preceding clauses (i), (ii), (iii), (iv), (v) or this
clause (vi), whether or not between or among the same parties.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"Initial Notes" means the Company's 9% Senior Subordinated Notes due 2007,
as amended or supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture.
"Initial Purchasers" means UBS Securities LLC, Donaldson, Lufkin &
Jenrette Securities Corporation, BancAmerica Securities, Inc., and Jefferies
& Company, Inc.
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"Insolvency or Liquidation Proceeding" means, with respect to any Person,
(i) an insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization proceeding or other similar case or proceeding,
relative to such Person, as such, or its assets, or (ii) any liquidation,
dissolution, reorganization proceeding or winding up of such Person (other than
any reincorporation of such Person in another jurisdiction), whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (iii)
any assignment for the benefit of creditors or any other marshaling of assets
and liabilities of such Person.
"Investment" of any Person means (i) all investments by such Person in any
other Person in the form of loans, advances or capital contributions (excluding
advances to employees in the ordinary course of business), (ii) all guarantees
of Indebtedness or other obligations of any other Person by such Person, (iii)
all purchases (or other acquisitions for consideration) by such Person of
Indebtedness, Capital Stock or other securities of any other Person and (iv) all
other items that would be classified as investments or advances on a balance
sheet of such Person prepared in accordance with GAAP.
"Issue Date" means the date on which the Securities are originally issued
under this Indenture.
"Lien" means, with respect to any Person, any mortgage, pledge, lien,
encumbrance, easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real or personal
property of such Person, or a security interest of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option, right of first refusal or other similar agreement to sell,
in each case securing obligations of such Person, and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statute or statutes) of any jurisdiction).
"Maturity Date" means September 1, 2007.
"Net Available Proceeds" means, with respect to any Asset Sale of any
Person, cash proceeds received (including any cash proceeds received by way of
deferred payment of principal pursuant to a note or installment receivable or
otherwise, but only as and when received, and excluding any other consideration
until such time as such consideration is converted into cash) therefrom, in each
case net of all legal, title and recording tax expenses, commissions and other
fees and expenses incurred, and all federal, state or local taxes required to be
accrued as a liability as a consequence of such Asset Sale, and in each case net
of all Indebtedness which is secured by such assets, in accordance with the
terms of any Lien upon or with respect to such assets, or which must, by its
terms or in order to obtain a necessary consent to such Asset Sale to prevent a
default or event of default under Senior Indebtedness or by applicable law, be
repaid out of the proceeds from such Asset Sale and which is actually so repaid.
"Net Cash Proceeds" means, in the case of any sale by the Company of
securities pursuant to clauses (B) or (C) of Section 4.10(a)(iii), the aggregate
net cash proceeds received by the Company, after payment of expenses,
commissions, discounts and any other transaction costs incurred in connection
therewith.
"Notes Custodian" means the custodian with respect to a Global Note (as
appointed by the Depository), or any successor person thereto and shall
initially be the Trustee.
"Officer" means, with respect to any Person, the Chairman of the Board,
the President, any Vice President, the Chief Financial Officer or the Treasurer
of such Person.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Officers, one of which must be the principal executive, principal
financial or principal accounting officer of the Company.
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13
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company (or any Subsidiary Guarantor, if applicable) or the
Trustee.
"Pari Passu Indebtedness" means the Existing Subordinated Notes and any
other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Notes in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of the Company which is not Senior Indebtedness.
"Permitted Business Investments" means (i) Investments by the Company or
any Restricted Subsidiary in any Person which immediately prior to the making of
such Investment is a Restricted Subsidiary; (ii) Investments in the Company by
any Restricted Subsidiary; and (iii) Investments by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such
Investment (A) such Person becomes a Restricted Subsidiary of the Company or (B)
such Person is merged, consolidated or amalgamated with or into, or transfers or
conveys all or substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company.
"Permitted Company Refinancing Indebtedness" means (i) Indebtedness of the
Company, the terms of which have been amended, modified or supplemented in a
manner that does not (A) affect the priority of such Indebtedness in right of
payment in relation to the Securities, (B) accelerate the maturity of such
Indebtedness or (C) shorten the Average Life of such Indebtedness and (ii)
Indebtedness of the Company, the net proceeds of which are used to renew,
extend, refinance, refund or repurchase outstanding Indebtedness of the Company,
provided that (A) if the Indebtedness (including the Securities) being renewed,
extended, refinanced, refunded or repurchased is pari passu with or subordinated
in right of payment to the Securities then such Indebtedness is pari passu with
or subordinated in right of payment to, as the case may be, the Securities at
least to the same extent as the Indebtedness being renewed, extended,
refinanced, refunded or repurchased, (B) such Indebtedness is scheduled to
mature no earlier than the Indebtedness being renewed, extended, refinanced,
refunded or repurchased, and (C) such Indebtedness has an Average Life at the
time such Indebtedness is incurred that is equal to or greater than the
remaining Average Life of the Indebtedness being renewed, extended, refinanced,
refunded or repurchased; provided, further, that such Indebtedness (to the
extent that such Indebtedness constitutes Permitted Company Refinancing
Indebtedness) is in an aggregate principal amount (or, if such Indebtedness is
issued at a price less than the principal amount thereof, the aggregate amount
of gross proceeds therefrom is) not in excess of the aggregate principal amount
then outstanding of the Indebtedness being renewed, extended, refinanced,
refunded or repurchased (or if the Indebtedness being renewed, extended,
refinanced, refunded or repurchased was issued at a price less than the
principal amount thereof, then not in excess of the amount of liability in
respect thereof determined in accordance with GAAP).
"Permitted Financial Investments" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof, (iii) certificates
of deposit and eurodollar time deposits with maturities of 12 months or less
from the date of acquisition, bankers' acceptances with maturities not exceeding
12 months and overnight bank deposits, in each case with any lender party to the
Bank Credit Facility or with any domestic commercial bank having capital and
surplus in excess of $300 million, (iv) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clauses (ii) and (iii) above entered into with any financial institution meeting
the qualifications specified in clause (iii) above, (v) commercial paper rated
at least A-2 or the equivalent thereof at the time of purchase by Moody's
Investors Service, Inc. and Standard & Poor's Corporation and in each case
maturing within 12 months after the date of acquisition, (vi) money market
mutual or similar funds having assets in excess of $100,000,000, and (vii) any
debt securities or adjustable rate preferred stock issued by a corporation
organized under the laws of a state of the United States of America or issued by
any state, county or municipality located in the United States of America which
is rated at least AA- or the equivalent thereof by Moody's Investors Service,
Inc. and Standard & Poor's Corporation and maturing or having a call provision
not exceeding 24 months from the date of acquisition.
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"Permitted Investments" means Permitted Business Investments and
Permitted Financial Investments.
"Permitted Liens" means (i) Liens existing on the Issue Date; (ii) Liens
now or hereafter securing Senior Indebtedness; (iii) Liens now or hereafter
securing any interest rate hedging obligations (A) that the Company is required
to enter into with respect to the Bank Credit Facility or (B) that are entered
into for the purpose of managing interest rate risk with respect to Indebtedness
of the Company and its Restricted Subsidiaries, provided that such interest rate
obligations under clauses (A) and (B) do not have an aggregate notional amount
which exceeds the aggregate principal amount of Indebtedness of the Company and
its Restricted Subsidiaries; (iv) Liens securing obligations under agreements
that the Company enters into in the ordinary course of business for the purpose
of protecting against fluctuations in oil, natural gas, refined products or
grain prices; (v) Liens securing Indebtedness, the proceeds of which are used to
refinance secured Indebtedness of the Company or its Restricted Subsidiaries;
provided, that such Liens extend to or cover only the property or assets
currently securing the Indebtedness being refinanced; (vi) Liens for taxes,
assessments and governmental charges not yet delinquent or being contested in
good faith and for which adequate reserves have been established to the extent
required by GAAP; (vii) mechanics', workmen's, materialmen's, operator's or
similar Liens arising in the ordinary course of business for sums that are not
yet delinquent or are being contested in good faith by appropriate action;
(viii) Liens in connection with workmen's compensation, unemployment insurance
or other social security, old age pension or public liability obligations not
yet due or which are being contested in good faith by appropriate action; (ix)
Liens, deposits or pledges to secure the performance of bids, tenders, contracts
(other than contracts for the payment of money), leases, public or statutory
obligations, surety, stay, appeal, indemnity, performance or other similar
bonds, or other similar obligations arising in the ordinary course of business;
(x) survey exceptions, encumbrances, easements or reservations of, or rights of
others for, rights of way, zoning or other restrictions as to the use of real
properties, and minor defects in title which, in the case of any of the
foregoing, were nor incurred or created to secure the payment of borrowed money
or the deferred purchase price of property or services, and in the aggregate do
not materially adversely affect the value of such properties or materially
impair use for the purposes of which such properties are held by the Company or
any Restricted Subsidiaries; (xi) Liens on, or related to, properties to secure
all or part of the costs incurred in the ordinary course of business of
exploration, drilling, development or operation thereof; (xii) Liens on pipeline
or pipeline facilities which arise out of operation of law; (xiii) judgment and
attachment Liens not giving rise to an Event of Default or Liens created by or
existing from any litigation or legal proceeding that are currently being
contested in good faith by appropriate proceedings and for which adequate
reserves have been established to the extent required by GAAP; (xiv) (A) Liens
upon any property of any Person existing at the time of acquisition thereof by
the Company or a Subsidiary, (B) Liens upon any property of a Person existing at
the time such Person is merged or consolidated with the Company or any
Restricted Subsidiary or existing at the time of the sale or transfer of any
such property of such Person to the Company or any Restricted Subsidiary, or (C)
Liens upon any property of a Person existing at the time such Person becomes a
Restricted Subsidiary; provided, that in each case such Lien has not been
created in contemplation of such sale, merger, consolidation, transfer or
acquisition, and provided further that in each such case no such Lien shall
extend to or cover any property of the Company or any Subsidiary other than the
property being acquired and improvements thereon; (xv) Liens on deposits to
secure public or statutory obligations or in lieu of surety or appeal bonds
entered into in the ordinary course of business; (xvi) Liens in favor of
collecting or payor banks having a right of setoff, revocation, refund or
chargeback with respect to money or instruments of the Company or any Restricted
Subsidiary on deposit with or in possession of such bank; (xvii) purchase money
Liens granted in connection with the acquisition of fixed assets in the ordinary
course of business and consistent with past practices, provided, that (A) such
Liens attach only to the property so acquired with the purchase money
indebtedness secured thereby and (B) such Liens secure only Indebtedness that is
not in excess of 100% of the purchase price of such fixed assets; (xviii) Liens
reserved in oil and gas mineral leases for bonus or rental payments and for
compliance with the terms of such leases; (xix) Liens arising under partnership
agreements, oil and gas leases, farm-out agreements, division orders, contracts
for the sale, purchase, exchange, transportation or processing of oil, gas or
other hydrocarbons, unitization and pooling declarations and agreements,
development agreements, operating agreements, area of mutual interest
-8-
15
agreements, and other agreements which are customary in the Principal Business;
and (xx) other Liens provided that such other Liens shall not secure obligations
in excess of $5,000,000 in the aggregate at any one time outstanding.
"Permitted Subsidiary Refinancing Indebtedness" means (i) Indebtedness of
any Subsidiary, the terms of which have been amended, modified or supplemented
in a manner that does not (A) affect the priority of such Indebtedness in right
of payment in relation to the Securities, ( B) accelerate the maturity of such
Indebtedness or (C) shorten the Average Life of such Indebtedness and (ii)
Indebtedness of any Subsidiary, the net proceeds of which are used to renew,
extend, refinance, refund or repurchase outstanding Indebtedness of such
Subsidiary, provided that (A) if the Indebtedness (including any guarantee
thereof) being renewed, extended, refinanced, refunded or repurchased is pari
passu with or subordinated in right of payment to the Guarantees, then such
Indebtedness is pari passu with or subordinated in right of payment to, as the
case may be, the Guarantees at least to the same extent as the Indebtedness
being renewed, extended, refinanced, refunded or repurchased, (B) such
Indebtedness is scheduled to mature no earlier than the Indebtedness being
renewed, extended, refinanced, refunded or repurchased, and (C) such
Indebtedness has an Average Life at the time such Indebtedness is incurred that
is equal to or greater than the remaining Average Life of the Indebtedness being
renewed, extended, refinanced, refunded or repurchased; provided further, that
such Indebtedness (to the extent that such Indebtedness constitutes Permitted
Subsidiary Refinancing Indebtedness) is in an aggregate principal amount (or, if
such Indebtedness is issued at a price less than the principal amount thereof,
the aggregate amount of gross proceeds therefrom is) not in excess of the
aggregate principal amount then outstanding under the Indebtedness being
renewed, extended, refinanced, refunded or repurchased (or if the Indebtedness
being renewed, extended, refinanced, refunded or repurchased was issued at a
price less than the principal amount thereof, then not in excess of the amount
of liability in respect thereof determined in accordance with GAAP).
"Person" means any individual, corporation, partnership, joint venture,
trust, estate, unincorporated organization or government or any agency or
political subdivision thereof.
"Post-Commencement Interest" means all interest accrued or accruing after
the commencement of any Insolvency or Liquidation Proceeding in accordance with
and at the contract rate (including, without limitation, any rate applicable
upon default) specified in the agreement or instrument creating, evidencing, or
governing any Senior Indebtedness, whether or not, pursuant to applicable law or
otherwise, the claim for such interest is allowed as a claim in such Insolvency
or Liquidation Proceeding.
"Principal Business" means (i) the business of the exploration for, and
development, acquisition, production, processing, marketing, refining, storage
and transportation of, hydrocarbons, (ii) any related energy and natural
resource business, (iii) any business currently engaged in by the Company or its
Subsidiaries, (iv) convenience stores, retail service stations, truck stops and
other public accommodations in connection therewith and (v) any activity or
business that is a reasonable extension, development or expansion of any of the
foregoing.
"Private Exchange" means the offer by the Company, pursuant to the
Registration Rights Agreement, to the Initial Purchasers to issue and deliver to
the Initial Purchasers, in exchange for the Initial Notes held by the Initial
Purchasers as part of their initial distribution, a like aggregate principal
amount of Private Exchange Notes.
"Private Exchange Notes" means the 9% Senior Subordinated Notes due 2007
to be issued pursuant to this Indenture in connection with a Private Exchange
effected pursuant to the Registration Rights Agreement.
"pro forma" means, with respect to any calculation made or required to be
made pursuant to the terms of this Indenture, a calculation in accordance with
the rules and regulations under the Securities Act.
"Public Equity Offering" means an underwritten primary public offering of
common stock of the Company pursuant to an effective registration statement
under the Securities Act of 1933, as amended.
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16
"Publicly Traded Stock" means, with respect to any Person, Voting Stock of
such Person which is registered under Section 12 of the Exchange Act and which
is actively traded on the New York Stock Exchange or American Stock Exchange or
quoted in the National Association of Securities Dealers Automated Quotation
System (National Market System).
"Purchase Agreement" means the Purchase Agreement dated August 21, 1997,
among the Company, the Subsidiary Guarantors and the Initial Purchasers.
"Qualified Stock" means any Capital Stock that is not Disqualified Stock.
"Reference Period" means, with respect to any Person, the four full fiscal
quarters ended immediately preceding any date upon which any determination is to
be made pursuant to the terms of the Securities or the Indenture.
"Registered Exchange Offer" means an offer by the Company, pursuant to the
Registration Rights Agreement, to certain Holders of Initial Notes, to issue and
deliver to such Holders, in exchange for the Initial Notes, a like aggregate
principal amount of Exchange Notes registered under the Securities Act.
"Registration Rights Agreement" means the Registration Rights Agreement
dated August 21, 1997 among the Company, the Subsidiary Guarantors and the
Initial Purchasers.
"Representative" means the indenture trustee or other trustee, agent or
representative of holders of any Senior Indebtedness.
"Restricted Payment" means, with respect to any Person, any of the
following: (i) any dividend or other distribution in respect of such Person's
Capital Stock (other than (A) dividends or distributions payable solely in
Capital Stock (other than Disqualified Stock) of such Person and (B) in the case
of Restricted Subsidiaries of the Company, dividends or distributions payable to
the Company or to a Restricted Subsidiary of the Company that is a Wholly Owned
Subsidiary); (ii) the purchase, redemption or other acquisition or retirement
for value of any Capital Stock, or any option, warrant, or other right to
acquire shares of Capital Stock, of the Company or any of its Restricted
Subsidiaries other than any such purchase, redemption or other acquisition or
retirement for value by the Company or any Restricted Subsidiary of the Company
that is a Wholly Owned Subsidiary of any Capital Stock, or, any option, warrant
or other right to acquire shares of Capital Stock, of any Restricted Subsidiary
with respect to such Capital Stock, option, warrant or other right which is
owned, at the time of any such transaction, by the Company or another Restricted
Subsidiary; (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any Indebtedness which is pari passu or subordinated in right of
payment to the Securities; and (iv) the making by such Person of any Investment
other than a Permitted Investment.
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary. The Company may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary by a Board Resolution of the Company, as evidenced
by written notice thereof delivered to the Trustee; provided, however, that,
immediately after giving effect to such designation, (i) the Company could incur
at least $1.00 in additional Indebtedness pursuant to Section 4.09(a) and (ii)
no Default or Event of Default shall have occurred and be continuing.
"Securities" means the Initial Notes, the Exchange Notes and the Private
Exchange Notes, treated as a single class.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
17
"Senior Indebtedness" means any Indebtedness of a Person (whether
outstanding on the date hereof or hereafter incurred), unless such Indebtedness
is stated to be pari passu with or is contractually subordinate or junior in
right of payment to the Securities.
"Shelf Registration Statement" means the registration statement issued by
the Company in connection with the offer and sale of Initial Notes or Private
Exchange Notes pursuant to the Registration Rights Agreement.
"Subordinated Securities" means securities of the Company or any
Subsidiary Guarantor that are subordinated, at least to the same extent as the
Securities or the 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 (i) a corporation a majority of whose
Voting Stock is at the time, directly or indirectly, owned by such Person, by
one or more subsidiaries of such Person or by such Person and one or more
subsidiaries of such Person, (ii) a partnership in which such Person or a
subsidiary of such Person is, at the date of determination, a general or limited
partner of such partnership, but only if such Person or its subsidiary is
entitled to receive more than 50% of the assets of such partnership upon its
dissolution, or (iii) any other Person (other than a corporation or partnership)
in which such Person, directly or indirectly, at the date of determination
thereof, has (A) at least a majority ownership interest or (B) the power to
elect or direct the election of a majority of the directors or other governing
body of such Person. For purposes of the foregoing definition, an arrangement by
which a Person who owns an interest in an oil and gas property is subject to a
joint operating agreement, processing agreement, net profits interest,
overriding royalty interest, farm-out agreement, development agreement, area of
mutual interest agreement, joint bidding agreement, unitization agreement,
pooling arrangement or other similar agreement or arrangement shall not, in and
of itself, cause such Person to be considered a Subsidiary.
"Subsidiary" means any subsidiary of the Company.
"Subsidiary Guarantor" means (i) each of the Company's Subsidiaries in
existence on the Issue Date, (ii) each of the Subsidiaries that becomes a
guarantor of the Securities in compliance with the provisions of Article Eleven
hereof and (iii) each of the Subsidiaries executing a supplemental indenture in
which such Subsidiary agrees to be bound by the terms of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 9.03.
"Transfer Restricted Notes" means Definitive Notes and Securities that
bear or are required to bear the legend set forth in Section 2.06(d).
"Trust Officer" means any officer or assistant officer within the
corporate trust department of the Trustee assigned by the Trustee to administer
its corporate trust matters.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor.
"Unrestricted Subsidiary" means (i) any Subsidiary of an Unrestricted
Subsidiary or (ii) any Subsidiary of the Company or of a Restricted Subsidiary
that is designated as an Unrestricted Subsidiary by a Board Resolution of the
Company in accordance with the following sentence. The Company may designate any
Subsidiary of the Company or of a Restricted Subsidiary (including any
Restricted Subsidiary or any newly formed or newly acquired Subsidiary) to be an
Unrestricted Subsidiary by a Board Resolution of the Company, as evidenced by
written notice thereof delivered to the Trustee, if after giving effect to such
designation, (i) the Company could incur $1.00 of
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18
additional Indebtedness pursuant to Section 4.09(a), (ii) the Company could make
an additional Restricted Payment of $1.00 pursuant to Section 4.10(a), (iii)
such Subsidiary does not own or hold any Capital Stock of, or any lien on any
property of, the Company or any Restricted Subsidiary and (iv) such Subsidiary
is not liable, directly or indirectly, with respect to any Indebtedness other
than Unrestricted Subsidiary Indebtedness.
"Unrestricted Subsidiary Indebtedness" of any Person means Indebtedness of
such Person (i) as to which neither the Company nor any Restricted Subsidiary is
directly or indirectly liable (by virtue of the Company's or such Restricted
Subsidiary's being the primary obligor, or guarantor of, or otherwise liable in
any respect on, such Indebtedness), (ii) which, with respect to Indebtedness
incurred after the date of this Indenture by the Company or any Restricted
Subsidiary, upon the occurrence of a default with respect thereto, does not
result in, or permit any holder of any Indebtedness of the Company or any
Restricted Subsidiary to declare, a default on such Indebtedness of the Company
or any Restricted Subsidiary and (iii) which is not secured by any assets of the
Company or of any Restricted Subsidiary.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof.
"U.S. Legal Tender" means such coin or currency of the United States as
at the time of payment shall be legal tender for the payment of public and
private debts.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors or other governing body of such Person.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock (other
than directors' qualifying shares, if applicable) of which is owned by the
Company or another Wholly Owned Subsidiary.
Section 1.02. Other Definitions
Term Defined in Section
"Affiliate Transaction" ................................. 4.14
"Agent Members" ......................................... 2.01
"Authorized Agent" ...................................... 11.09
"Bankruptcy Law" ........................................ 6.01
"Change of Control Offer" ............................... 4.16
"Change of Control Notice" .............................. 4.16
"Change of Control Payment Date" ........................ 4.16
"Custodian" ............................................. 6.01
"Debt Incurrence Date" .................................. 1.01
"Definitive Notes" ...................................... 2.01
"Event of Default" ...................................... 6.01
"Excess Proceeds" ....................................... 4.11
"Funding Guarantor" ..................................... 11.06
"Global Note" ........................................... 2.01
"IAI" ................................................... 2.01
"incur" ................................................. 4.09
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19
"Judgment Currency" .......................................... 11.11
"Legal Holiday" .............................................. 13.07
"Net Proceeds Deficiency" .................................... 4.11
"Net Proceeds Offer" ......................................... 4.11
"Net Proceeds Offer Amount" .................................. 4.11
"Net Proceeds Payment Date" .................................. 4.11
"Non-U.S. Subsidiary Guarantor" .............................. 11.09
"Note Register" .............................................. 2.03
"Offered Price" .............................................. 4.11
"Pari Passu Indebtedness Amount" ............................. 4.11
"Pari Passu Offer" ........................................... 4.11
"Paying Agent" ............................................... 2.03
"Payment Default" ............................................ 10.02
"Payment Notice" ............................................. 10.02
"Payment Restriction" ........................................ 4.13
"Purchase Agreement" ......................................... 2.01
"Purchase Notice" ............................................ 4.11
"QIB" ........................................................ 2.01
"Registrar" .................................................. 2.03
"Regulation S" ............................................... 2.01
"Rule 144A" .................................................. 2.01
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms, if used in this Indenture, have the following meanings:
"Commission" means the Commission.
"indenture securities" means the Securities and the Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the Subsidiary
Guarantors and any other obligor on the Securities or the Guarantees.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meanings assigned to them therein.
Section 1.04. Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
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(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) any gender used in this Indenture shall be deemed to include the
neuter, masculine or feminine genders;
(6) provisions apply to successive events and transactions; and
(7) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other Subdivision.
ARTICLE TWO
THE SECURITIES
Section 2.01. Form and Dating
The Initial Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this Indenture. The Exchange Notes, the
Private Exchange Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B, which is hereby incorporated by
reference and expressly made a part of this Indenture. The Securities may have
such notations, legends or endorsements approved as to form by the Company and
required, as applicable, by law, stock exchange rule, agreements to which the
Company is subject and/or usage. Each Security shall be dated the date of its
authentication. The Securities shall be issuable only in denominations of $1,000
and integral multiples thereof. The terms of the Securities set forth in Exhibit
A and Exhibit B are part of the terms of this Indenture.
The Initial Notes are being offered and sold by the Company pursuant to a
Purchase Agreement, dated August 21, 1997, among the Company, the Subsidiary
Guarantors and the Initial Purchasers (the "Purchase Agreement").
(a) Global Notes. Initial Notes offered and sold to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) (a
"QIB") in reliance on Rule 144A under the Securities Act ("Rule 144A") or in
reliance on Regulation S under the Securities Act ("Regulation S"), in each case
as provided in the Purchase Agreement, shall be issued initially in the form of
one permanent global Security in definitive, fully registered form without
interest coupons (the "Global Note") with the global security legend and
restricted security legend set forth in Exhibit A hereto, which shall be
deposited on behalf of the purchasers of the Initial Notes represented thereby
with the Trustee, as custodian for the Depository (or with such other custodian
as the Depository may direct), and registered in the name of the Depository or a
nominee of the Depository, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depository or its nominee as hereinafter
provided.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to
the Global Note deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with this
Section 2.01 (b), authenticate and deliver initially one Global Note that (i)
shall be registered in the name of the Depository or the nominee of the
Depository and (ii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instructions or held by the Trustee as custodian
for the Depository.
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Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to the Global Note held on
their behalf by the Depository or by the Trustee as the custodian of the
Depository or under such Global Note, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices of
such Depository governing the exercise of the rights of a holder of a beneficial
interest in the Global Note.
(c) Definitive Notes. Except as provided in this Section, Section 2.06 or
Section 2.09, owners of beneficial interests in the Global Note will not be
entitled to receive Definitive Notes. Purchasers of Initial Notes who are
institutional "accredited investors" as described in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act (each an "IAI") and who are not QIBs and did not
purchase Initial Notes sold in reliance on Regulation S will receive physical
delivery of certificated Initial Notes (certificated Securities are herein
referred to as "Definitive Notes"); provided, however, that upon transfer of
such Definitive Notes to a QIB or in reliance on Regulation S such Definitive
Notes will, unless the Global Note has previously been exchanged for Definitive
Notes pursuant to Section 2.06 or Section 2.09, be exchanged for an interest in
the Global Note pursuant to the provisions of Section 2.06. Definitive Notes
will bear the restricted securities legend set forth on Exhibit A unless removed
in accordance with Section 2.06(d).
Section 2.02. Execution and Authentication.
Two Officers of the Company shall sign the Securities for the Company, and
two Officers of each Subsidiary Guarantor shall sign the notation on the
Securities relating to the Guarantee of such Subsidiary Guarantor on behalf of
such Subsidiary Guarantor, in each case by manual or facsimile signature.
If an Officer of the Company or any Subsidiary Guarantor whose signature
is on a Security no longer holds that office at the time such Security is
authenticated such Security shall be valid nevertheless.
A Security shall not be valid until authenticated by the manual signature
of the Trustee. The signature of the Trustee shall be conclusive evidence that a
Security has been authenticated in accordance with the terms of this Indenture.
The Trustee, upon a written order of the Company signed by two Officers of
the Company, shall authenticate and deliver (1) Initial Notes for original issue
in an aggregate principal amount of $150,000,000, and (2) Exchange Notes or
Private Exchange Notes for issue only in a Registered Exchange Offer or a
Private Exchange, respectively, pursuant to the Registration Rights Agreement,
for a like principal amount of Initial Notes, in each case upon a written order
of the Company signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company. Such order shall specify the
amount of the Securities to be authenticated, the date on which the original
issue of Securities is to be authenticated and whether the Securities are to be
Initial Notes, Exchange Notes or Private Exchange Notes. The aggregate principal
amount of Securities outstanding at any time may not exceed $150,000,000 except
as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate the Securities. Unless limited by the terms of such appointment,
any such authenticating agent may authenticate the Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such authenticating agent of the Trustee. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
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The Company shall maintain (i) an office or agency where the Securities
may be presented for registration of transfer or for exchange (including any
co-registrar, the "Registrar"); and (ii) an office or agency where the
Securities may be presented for payment ("Paying Agent"). The Registrar shall
keep a register of the Holders of Securities and of the transfer and exchange of
such Securities (the "Note Register"). The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Paying Agent"
shall include any such additional paying agent. The Company may change any
Paying Agent, Registrar or co-registrar without prior notice to any Holder of a
Security. The Company shall notify the Trustee and the Trustee shall, at the
Company's expense, notify the Holders of the Securities of the name and address
of any Agent not a party to this Indenture. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar. The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which shall incorporate
the provisions of the TIA. Any such agency agreement shall implement the
provisions of this Indenture that relate to such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the
Trustee shall act as such, as appropriate, and shall be entitled to appropriate
compensation in accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Securities.
Section 2.04. Paying Agent to Hold Money In Trust.
On or prior to each due date of the principal of, premium, if any, and
interest on any Security, the Company shall deposit with the Paying Agent a sum
sufficient to pay such principal, premium, if any, and interest when so becoming
due. The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders of the Securities or the Trustee all money held by the Paying Agent
for the payment of principal of, premium, if any, and interest on the
Securities, and shall notify the Trustee of any Default by the Company in making
any such payment. While any such Default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee and accounting
for any funds disbursed, the Paying Agent (if other than the Company) shall have
no further liability for the money delivered to the Trustee. If the Company acts
as Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders of the Securities all money held by it as Paying Agent.
Section 2.05. Lists of Holders of Securities.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders of Securities. If the Trustee is not the Registrar, the Company
shall furnish or cause to be furnished to the Trustee at least ten Business Days
before each interest payment date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Securities,
including the aggregate principal amount of Securities held by each such Holder
of Securities.
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. Definitive Notes shall be
issued in registered form and shall be transferable only upon the surrender of
Definitive Notes for registration of transfer. When Definitive Notes are
presented to the Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Definitive Notes of other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met; provided, however, that any
Definitive Notes presented or surrendered for registration of transfer or
exchange:
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(i) shall be duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar and the Trustee duly
executed by the Holder thereof or by his attorney duly authorized in
writing; and
(ii) are being transferred pursuant to Section 2.06(b) or pursuant
to clause (A), (B) or (C) below, and are accompanied by the following
additional information and documents, as applicable:
(A) if such Definitive Notes are being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect
(in the form set forth on the reverse of the Security); or
(B) if such Definitive Notes are being transferred to the
Company a certification to that effect (in the form set forth on the
reverse of the Security); or
(C) if such Definitive Notes are being transferred pursuant to
an exemption from registration in accordance with Rule 144, Rule
144A or Regulation S under the Securities Act: (i) a certificate to
that effect (in the form set forth on the reverse of the Security),
and (ii) if the Company or Registrar so requests, evidence
reasonably satisfactory to them as to the compliance with the
restrictions set forth in the legend set forth in Section
2.06(d)(i).
(b) Restrictions on Transfer of a Definitive Note for a Beneficial
Interest in the Global Note. A Definitive Note may not be exchanged for a
beneficial interest in the Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) certification, in the form set forth on the reverse of the
Security, that such Definitive Note is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or to a non-U.S. person
in accordance with Rule 904 under the Securities Act; and
(ii)written instructions directing the Trustee to make, or to
direct the Notes Custodian to make, an adjustment on its books and records
with respect to such Global Note to reflect an increase in the aggregate
principal amount of the Securities represented by the Global Note,
then the Trustee shall cancel such Definitive Note and cause, or direct the
Notes Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Notes Custodian, the
aggregate principal amount of Securities represented by the Global Note to be
increased accordingly. If no Global Note is then outstanding, the Company shall
issue and the Trustee shall authenticate, upon written order of the Company in
the form of an Officers' Certificate, a new Global Note in the appropriate
principal amount.
(c) Transfer and Exchange of Global Notes.
(i) The transfer and exchange of the Global Note or beneficial
interests therein shall be effected through the Depository, in accordance
with this Indenture (including applicable restrictions on transfer set
forth herein, if any) and the procedures of the Depository therefor, if
applicable.
(ii) Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in Section 2.09), the Global Note may not be
transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
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(iii) In the event that the Global Note is exchanged for
Definitive Notes pursuant to Section 2.09, prior to the consummation of
a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities
may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.06
(including the certification requirements set forth on the reverse of
the Initial Notes intended to ensure that such transfers comply with
Rule 144A or Regulation S, as the case may be) and such other
procedures as may from time to time be adopted by the Company.
(d) Legend.
(i) Except as permitted by the following paragraphs (ii) and
(iii), each certificate evidencing the Global Note and the Definitive
Notes (and all Securities issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND UNDER APPLICABLE
STATE SECURITIES LAWS, AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (i) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(ii) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR
(iv) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (i) THROUGH (iv) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED
TO IN (A) ABOVE."
When set forth on a Definitive Note, the legend will include the
following additional words:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by the Global Note)
pursuant to Rule 144 under the Securities Act or an effective
registration statement under the Securities Act, which shall be
certified to the Trustee and Registrar upon which each may conclusively
rely:
(A) in the case of any Transfer Restricted Note that
is a Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Note for a
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Definitive Note that does not bear the legend set forth above
and rescind any restriction on the transfer of such Transfer
Restricted Note;
(B) in the case of any Transfer Restricted Note
represented by a Global Note, such Transfer Restricted Note
shall not be required to bear the legend set forth in (i)
above if all other interests in such Global Note have been or
are concurrently being sold or transferred pursuant to Rule
144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act, but such
Transfer Restricted Note shall continue to be subject to the
provisions of Section 2.06(c) hereof; provided, however, that
with respect to any request for an exchange of a Transfer
Restricted Note that is represented by a Global Note for a
Definitive Note that does not bear a legend set forth in (i)
above, which request is made in reliance upon Rule 144 under
the Securities Act, the Holder thereof shall certify in
writing to the Security Registrar that such request is being
made pursuant to Rule 144 under the Securities Act (such
certification to be substantially in the form of Exhibit A
hereto and upon which the Registrar may conclusively rely).
(C) Notwithstanding the foregoing, upon consummation
of the Registered Exchange Offer, the Company shall issue and,
upon receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate Exchange
Notes in exchange for Initial Notes accepted for exchange in
the Registered Exchange Offer, which Exchange Notes shall not
bear the legend set forth in (i) above, and the Registrar
shall rescind any restriction on the transfer of such
Securities, in each case unless the Holder of such Initial
Notes is either (A) a broker-dealer, (B) a Person
participating in the distribution of the Series A Securities
or (C) a Person who is an affiliate (as defined in Rule 144
under the Securities Act) of the Company. The Company shall
identify to the Trustee such Holders of the Securities in a
written certification signed by an Officer of the Company and,
absent certification from the Company to such effect, the
Trustee shall assume that there are no such Holders.
(iii) After a transfer of any Initial Notes or Private
Exchange Notes during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Notes or Private
Exchange Notes, as the case may be, all requirements pertaining to
legends on such Initial Note or such Private Exchange Note will cease
to apply, the requirements requiring any such Initial Note or such
Private Exchange Note issued to certain Holders be issued in the form
of a Global Note will cease to apply, and an Initial Note or Private
Exchange Note in the form of a Definitive Note without legends will be
available to the transferee of the Holder of such Initial Notes or
Private Exchange Notes or upon receipt of directions to transfer such
Holder's interest in the Global Note, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Notes pursuant to which Holders of such Initial
Notes are offered Exchange Notes in exchange for their Initial Notes,
(A) all requirements pertaining to such Initial Notes that Initial
Notes issued to certain Holders be issued in the form of a Global Note
will cease to apply, (B) Initial Notes in the form of Definitive Notes
with the restricted securities legend set forth in Exhibit A hereto
will be available to Holders of such Initial Notes that do not exchange
their Initial Notes and (C) Exchange Notes in the form of Definitive
Notes without the restricted securities legend set forth in Exhibit A
hereto will be available to Holders that exchange such Initial Notes in
such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect
to the Initial Notes pursuant to which Holders of such Initial Notes
are offered Private Exchange Notes in exchange for their Initial Notes,
all requirements pertaining to such Initial Notes that Initial Notes
issued to certain holders be issued in the form of a Definitive Note
will still apply, and Private Exchange Notes in the form of a
Definitive Note with the restricted securities legend set forth in
Exhibit A hereto will be available to Holders that exchange such
Initial Notes in such Private Exchange.
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(e) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in the Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or canceled, such Global Note shall be
returned to the Depository for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in
the Global Note is exchanged for Definitive Notes, redeemed, repurchased or
canceled, the principal amount of Securities represented by such Global Note
shall be reduced and an adjustment shall be made by the Trustee or the Notes
Custodian to reflect such reduction on the books and records of the Notes
Custodian for such Global Note with respect to such Global Note.
(f) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registration of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate certificated
Securities, Definitive Notes and the Global Note at the Registrar's or
co-registrar's request.
(ii) The Company may require payment of a sum sufficient to
pay all taxes, assessments or other governmental charges in connection
with any transfer or exchange pursuant to this Section 2.06.
(iii) The Company shall not be required to make and the
Registrar or co-registrar need not register transfers or exchanges of
Definitive Notes selected for redemption (except, in the case of any
Definitive Note to be redeemed in part, the portion thereof not to be
redeemed), or any Securities for a period of 15 days before the mailing
of a notice of redemption of Securities to be redeemed or 15 days
before an interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the person in
whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture will evidence the same debt and
will be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner in the 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
Securities 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 Securities. All notices and
communications to be given to the Holders and all payments to be made
to Holders under the Securities shall be given or made only to or upon
the order of the registered Holders (which shall be the Depository or
its nominee in the case of the Global Note). The rights of beneficial
owners in the Global Note shall be exercised only through the
Depository subject to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to
its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with
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respect to any transfer of any interest in any Security (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 2.07. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Company's and the Trustee's
reasonable requirements for the replacements of Securities are met. An indemnity
bond shall be supplied by the Holder that is sufficient in the judgment of the
Trustee, the Company and the Subsidiary Guarantors to protect the Company, the
Trustee, any Agent or any authenticating agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge for its expenses
(including fees and expenses of the Trustee) in replacing a Security.
Every replacement Security shall be an obligation of the Company.
Section 2.08. Outstanding Securities; Treasury Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee, except for those canceled by it, those delivered
to it for cancellation and those described in this Section 2.08 as not
outstanding. A Security does not cease to be outstanding because the Company, a
Subsidiary Guarantor or any of their respective Subsidiaries or Affiliates of
the Company holds such Security.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, any Subsidiary Guarantor or an Affiliate of the Company shall be
considered as though they are not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded.
If a Security is replaced pursuant to Section 2.07, it shall cease to
be outstanding unless the Trustee receives proof satisfactory to it that such
replaced Security is held by a bona fide purchaser. A mutilated Security ceases
to be outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.07.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Securities
(or portions thereof) to be redeemed or maturing, as the case may be, and the
Paying Agent is not prohibited from paying such money to the Holders of
Securities on that date pursuant to the terms of this Indenture, then on and
after that date such Securities (or portions thereof) shall cease to be
outstanding and interest thereon shall cease to accrue.
Section 2.09. Temporary Securities and Definitive Notes.
(a) Until certificates in definitive form for the Securities are ready
for delivery, the Company may prepare and the Trustee shall authenticate
certificates in temporary form for the Securities. Certificates in temporary
form for the Securities shall be substantially in the form of certificates in
definitive form for the Securities but may have such variations as the Company
and the Trustee consider appropriate for certificates in temporary form for the
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate certificates in definitive form for the Securities in
exchange for certificates in temporary form for the Securities. Until such
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exchange, certificates in temporary form for the Securities shall be entitled to
the same rights, benefits and privileges as certificates in definitive form for
the Securities.
(b) The Global Note deposited with the Depository or with the Trustee
as custodian for the Depository pursuant to Section 2.01 shall be transferred to
the beneficial owners thereof in the form of Definitive Notes in an aggregate
principal amount equal to the principal amount of such Global Note, in exchange
for such Global Note, only if such transfer complies with Section 2.06 and (i)
the Depository notifies the Company that it is unwilling or unable to continue
as Depository for such Global Note or if at any time such Depository ceases to
be a "clearing agency" registered under the Exchange Act and a successor
depository is not appointed by the Company within 90 days of such notice, (ii)
an Event of Default has occurred and is continuing or (iii) the Company, in its
sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of Definitive Notes under this Indenture.
(c) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section shall be surrendered by the Depository to the
Trustee to be so transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Note, an equal aggregate principal amount of Initial
Notes of authorized denominations. Any portion of the Global Note transferred
pursuant to this Section shall be executed, authenticated and delivered only in
denominations of $1,000 and any integral multiple thereof and registered in such
names as the Depository shall direct. Any Initial Note delivered in exchange for
an interest in the Global Note shall, except as otherwise provided by Section
2.06(d), bear the restricted securities legend set forth in Exhibit A hereto.
(d) Subject to the provisions of Section 2.09(c), the registered Holder
of the Global Note may grant proxies and otherwise authorize any person,
including agent members, participants and persons that may hold interests
through agent members, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
(e) In the event of the occurrence of any of the events specified in
Section 2.09(b), the Company will promptly make available to the Trustee a
reasonable supply of Definitive Notes in definitive, fully registered form
without interest coupons.
Section 2.10. Cancellation.
The Company or any Subsidiary Guarantor at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment,
replacement or cancellation, and shall return such canceled Securities to the
Company (subject to the record retention requirement of the Exchange Act). The
Company may not issue new Securities to replace Securities it has redeemed, paid
or delivered to the Trustee for cancellation.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, the
Company shall pay such defaulted interest in any lawful manner. The Company may
pay such defaulted interest to the Persons who are Holders of the Securities on
a subsequent special record date, which date shall be at the earliest
practicable date but in all events at least five Business Days prior to the
payment date, in each case at the rate provided in the Securities. The Company
shall fix or cause to be fixed any such special record date and payment date,
and, at least 15 days prior to the special record date, the Company shall mail
or cause to be mailed to each Holder of a Security a notice that states such
special record date, such related payment date and the amount of any such
defaulted interest to be paid to Holders of the Securities.
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Section 2.12. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number, and, if
the Company shall do so, the Trustee shall use such CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in such notice or on the Securities and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company will promptly notify the Trustee of any change in a
CUSIP number.
Section 2.13 Persons Deemed Owners.
The Company, any Subsidiary Guarantor, the Trustee, any Paying Agent
and any authenticating agent may treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of receiving payments
of principal of, premium, if any, or interest on such Security and for all other
purposes. None of the Company, any Subsidiary Guarantor, the Trustee, any Paying
Agent or any authenticating agent shall be affected by any notice to the
contrary.
ARTICLE THREE
REDEMPTION
Section 3.01. Notice to Trustee.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions of paragraph 6 of the Securities, it shall furnish to the
Trustee, at least 45 days but not more than 60 days before the redemption date,
an Officer's Certificate setting forth the redemption date, the principal amount
of Securities to be redeemed and the redemption price.
Section 3.02. Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed in multiples of $1,000 pro rata, by
lot or, if the Securities are listed on any securities exchange, by any other
method that the Trustee considers fair and appropriate and that complies with
the requirements of such exchange. The Trustee shall make the selection from
outstanding Securities not previously called for redemption not less than 30 nor
more than 60 days prior to the redemption date. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than $1,000. Securities and portions of them it selects shall be in
amounts of $1,000 or whole multiples of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Company promptly
of the Securities or portions of Securities selected for redemption.
Section 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption by first-class mail to each
Holder of Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
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(2) the redemption price;
(3) the aggregate principal amount of Securities being
redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered
to the Paying Agent at the address specified in such notice to collect
the redemption price;
(6) that, unless the Company defaults in the payment of the
redemption price or accrued interest, interest on Securities called for
redemption ceases to accrue on and after the redemption and the only
remaining right of the Holders is to receive payment of the redemption
prices upon surrender to the Paying Agent of the Securities;
(7) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(8) the paragraph of the Securities pursuant to which the
Securities called for redemption are being redeemed; and
(9) the CUSIP number of the Securities.
(b) At the Company's request, the Trustee shall give the notice of
redemption required in Section 3.03(a) in the Company's name and at the
Company's expense; provided, however, that the Company shall deliver to the
Trustee, at least 45 days prior to the redemption date, an Officer's Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in Section 3.03(a).
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the redemption date
at the redemption price. Upon surrender to the Paying Agent, such Securities
shall be paid at the redemption price, plus accrued interest to the redemption
date.
Section 3.05. Deposit of Redemption Price.
Prior to the redemption date, the Company shall deposit with the Paying
Agent funds available on the redemption date sufficient to pay the redemption
price of, and accrued interest on, the Securities to be redeemed on that date.
The Paying Agent shall promptly return to the Company any money so deposited
which is not required for that purpose upon the written request of the Company,
except with respect to monies owed as obligations to the Trustee pursuant to
Article Seven.
If any Security called for redemption shall not be so paid upon
redemption because of the failure of the Company to comply with the preceding
paragraph, interest will continue to be payable on the unpaid principal and
premium, if any, including from the redemption date until such principal and
premium, if any, is paid, and, to the extent lawful, on any interest not paid on
such unpaid principal, in each case at the rate provided in the Securities and
in Section 4.01 hereof.
Section 3.06. Securities Redeemed in Part.
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Upon surrender of a Security that is to be redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder, at the
expense of the Company, a new Security equal in aggregate amount to the
unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Securities.
The Company shall pay the principal of, premium, if any, and interest
on, the Securities on the dates and in the manner provided in the Securities and
this Indenture. Principal, premium, if any, and interest shall be considered
paid on the date due if the Trustee or Paying Agent holds on that date money
deposited by the Company designated for and sufficient to pay all principal,
premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal, and premium, if any,
at the rate borne by the Securities to the extent lawful; and it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
Section 4.02. Commission Reports.
(a) The Company shall file with the Trustee, within 15 days after it
files the same with the Commission, copies of the annual reports and the
information, documents and other reports (or copies of any such portions of any
of the foregoing as the Commission may by rules and regulations prescribe) that
the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act. If the Company is not subject to the requirements of
such Section 13 or 15(d), the Company shall file with the Trustee, within 15
days after it would have been required to file the same with the Commission,
financial statements, including any notes thereto (and with respect to annual
reports, an auditors' report by a firm of established national reputation), and
a "Management's Discussion and Analysis of Financial Condition and Results of
Operations," both comparable to that which the Company would have been required
to include in such annual reports, information, documents or other reports if
the Company had been subject to the requirements of such Section 13 or 15(d).
The Company and each Subsidiary Guarantor shall also comply with the provisions
of TIA Section 314(a).
(b) If the Company is required to furnish annual or quarterly reports
to its stockholders pursuant to the Exchange Act, the Company shall cause any
annual report furnished to its stockholders generally and any quarterly or other
financial reports furnished by it to its stockholders generally to be filed with
the Trustee and mailed to the Holders at their addresses appearing in the
register of Securities maintained by the Registrar. If the Company is not
required to furnish annual or quarterly reports to its stockholders pursuant to
the Exchange Act, the Company shall cause its financial statements referred to
in Section 4.03(b), including any notes thereto (and with respect to annual
reports, an auditors' report by a firm of established national reputation), to
be so mailed to the Holders within 90 days after the end of each of the
Company's fiscal years and within 60 days after the end of each of the Company's
first three fiscal quarters.
(c) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Trustee may
be required to deliver to Holders under this Section. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
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Section 4.03. Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and the Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that, to the best of
such Officer's knowledge, the Company and each Subsidiary Guarantor has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which
such Officer may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of such Officer's
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, or interest, if any,
on the Securities are prohibited or, if such event has occurred, a description
of the event and what action the Company and the Subsidiary Guarantors are
taking or propose to take with respect thereto. Such Officers' Certificate shall
comply with TIA Section 314(a)(4).
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.02 shall be accompanied by a written
statement of the Company's independent public accountants (which shall be a firm
of established national reputation) that in making the examination necessary for
certification of such financial statements nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Articles 4 or 5 of this Indenture (to the extent such provisions relate to
accounting matters) or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company and the Subsidiary Guarantors will, so long as any of
the Securities are outstanding, deliver to the Trustee as soon as possible and
in any event within five days after any Officer becomes aware of any Default or
Event of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Company or any Subsidiary Guarantor proposes to take
with respect thereto.
Section 4.04. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company initially designates The Bank of New York, 101
Barclay Street, 21 West, New York, New York 10286 to be its agent for purposes
of the preceding sentence. The Company will give prompt written notice to the
Trustee of any change in the location of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 4.05. Corporate Existence.
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Subject to the provisions of the Indenture on mergers, consolidations,
reorganizations, sales of capital stock of Restricted Subsidiaries and releases,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the corporate,
partnership or other existence of each Restricted Subsidiary and all rights
(charter and statutory) and franchises of the Company and the Restricted
Subsidiaries; provided, that the Company shall not be required to preserve the
corporate existence of any Restricted Subsidiary, or any such right or
franchise, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 4.06. Waiver of Stay, Extension or Usury Laws.
The Company and each Subsidiary Guarantor covenants (to the extent that
each may lawfully do so) that it will not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension, or usury law or other law, which would prohibit or forgive the
Company or any Subsidiary Guarantor from paying all or any portion of the
principal of, premium, if any, or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that each may lawfully do so) the Company and each Subsidiary Guarantor hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 4.07. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary; provided, however, that the Company shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Section 4.08. Maintenance of Properties and Insurance; Line of Business.
(a) The Company shall cause all properties used or necessary in the
conduct of its business or the business of any Restricted Subsidiary to be
maintained and kept in good condition, repair and working order (ordinary wear
and tear excepted) and supplied with all necessary equipment and shall cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any such property, or disposing of it, if such discontinuance or
disposal is, in the judgment of the Company, desirable in the conduct of its
business and not disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for itself and
each of its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company are adequate and appropriate for the conduct
of the business of the Company and such Restricted Subsidiaries in a prudent
manner, with reputable insurers or with the government of the United States or
an agency or instrumentality thereof, in such amounts, with such deductibles,
and by such methods as shall be customary, in the reasonable, good faith opinion
of the Company, for corporations similarly situated in the industry.
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(c) For as long as any Securities are outstanding, the Company shall
not, and shall not permit any of its Restricted Subsidiaries to, engage in any
business or activity other than the Principal Business.
Section 4.09. Limitation on Incurrence of Additional Indebtedness.
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries, directly or indirectly, to issue, incur, assume, guarantee, become
liable, contingently or otherwise, with respect to or otherwise become
responsible for the payment of (collectively, "incur") any Indebtedness;
provided, however, that if no Default or Event of Default with respect to the
Securities shall have occurred and be continuing at the time or as a consequence
of the incurrence of such Indebtedness, the Company or the Restricted
Subsidiaries may incur Indebtedness if, on a pro forma basis, after giving
effect to such incurrence and the application of the proceeds therefrom, the
Consolidated Coverage Ratio would have been equal to or greater than 2.0 to 1.0.
(b) Notwithstanding the foregoing, (i) the Company may incur
Indebtedness consisting of the Securities; (ii) the Subsidiary Guarantors may
incur the Guarantees of the Securities; (iii) the Company or any Subsidiary may
incur secured or unsecured Indebtedness outstanding at any time in an aggregate
principal amount not to exceed the greater of (A) $40 million or (B) the
Borrowing Base; (iv) the Company may incur Permitted Company Refinancing
Indebtedness; (v) any Restricted Subsidiary may incur Permitted Subsidiary
Refinancing Indebtedness; and (vi) the Company may incur Indebtedness to any
Restricted Subsidiary, and any Restricted Subsidiary may incur Indebtedness to
the Company or to any Restricted Subsidiary of the Company.
(c) Any Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition
or otherwise) shall be deemed to be incurred by such Restricted Subsidiary at
the time it becomes a Restricted Subsidiary.
Section 4.10. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(ii) at the time of and immediately after giving effect to
such Restricted Payment, the Company would be able to incur at least
$1.00 of additional Indebtedness pursuant to Section 4.09(a); and
(iii) immediately after giving effect to such Restricted
Payment, the aggregate of all Restricted Payments declared or made
after the Issue Date does not exceed the sum of (A) 50% of the
Consolidated Net Income of the Company and its Restricted Subsidiaries
(or in the event such Consolidated Net Income shall be a deficit, minus
100% of such deficit) during the period (treated as one accounting
period) subsequent to September 30, 1997 and ending on the last day of
the fiscal quarter immediately preceding the date of such Restricted
Payment; (B) the aggregate Net Cash Proceeds, and the fair market value
of property other than cash (as determined in good faith by the
Company's Board of Directors and evidenced by a Board Resolution),
received by the Company during such period from any Person other than a
Restricted Subsidiary of the Company as a result of the issuance or
sale of Capital Stock of the Company (other than any Disqualified
Stock), other than in connection with the conversion of Indebtedness or
Disqualified Stock; (C) the aggregate Net Cash Proceeds, and the fair
market value of property other than cash (as determined in good faith
by the Company's Board of Directors and evidenced by a Board
Resolution), received by the Company during such period from any Person
other than a Restricted Subsidiary of the Company as a result of the
issuance or sale of any Indebtedness or Disqualified Stock to the
extent that at the time the determination is made such Indebtedness or
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Disqualified Stock, as the case may be, has been converted into or
exchanged for Capital Stock of the Company (other than Disqualified
Stock); (D)(1) in case any Unrestricted Subsidiary has been
redesignated a Restricted Subsidiary, an amount equal to the lesser of
(x) the book value (determined in accordance with GAAP) at the date of
such redesignation of the aggregate Investments made by the Company and
its Restricted Subsidiaries in such Unrestricted Subsidiary and (y) the
fair market value of such Investments in such Unrestricted Subsidiary
at the time of such redesignation, as determined in good faith by the
Board of Directors of the Company, whose determination shall be
conclusive and evidenced by a Board Resolution; or (2) in case any
Restricted Subsidiary has been redesignated an Unrestricted Subsidiary,
minus the greater of (x) the book value (determined in accordance with
GAAP) at the date of redesignation of the aggregate Investments made by
the Company and its Restricted Subsidiaries in such Restricted
Subsidiary and (y) the fair market value of such Investments in such
Restricted Subsidiary at the time of such redesignation, as determined
in good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution; (E) without
duplication, with respect to any Investment (other than a Permitted
Investment) of any Person which has previously been made by the Company
or any of its Restricted Subsidiaries, the amount of any such
Investment that has been fully and unconditionally repaid to the
Company or a Restricted Subsidiary, not to exceed the cash amount
received by the Company or such Restricted Subsidiary upon such
repayment or with respect to any Indebtedness of any Person that has
previously been guaranteed by the Company or any of its Restricted
Subsidiaries (other than the Notes or Subsidiary Guarantees), the
amount of any such Indebtedness that has been fully and unconditionally
repaid or for which the guarantees of the Company and each of its
Restricted Subsidiaries which are guarantors thereof have been fully
and unconditionally released from any and all further obligation or
liability with respect thereto, provided in each case that such amount
shall not exceed the aggregate amount of Restricted Payments previously
taken into account with respect to such amount for purposes of
determining the aggregate amount of all Restricted Payments declared or
made after the Issue Date pursuant to this clause (iii); and (F) $30
million.
(b) Notwithstanding the foregoing, the above limitations will not
prevent (i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment complied with
the provisions hereof, (ii) the purchase, redemption, acquisition or retirement
of any shares of Capital Stock of the Company in exchange for, or out of the net
proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of, other shares of Capital Stock (other than
Disqualified Stock) of the Company; or.(iii) the defeasance, redemption or
retirement of Indebtedness of the Company which is pari passu or subordinate in
right of payment to the Securities, in exchange for, by conversion into, or out
of the net proceeds of the substantially concurrent issue or sale (other than to
a Restricted Subsidiary of the Company) of Capital Stock (other than
Disqualified Stock) of the Company; provided, that no Default or Event of
Default has occurred and is continuing at the time, or shall occur as a result,
of any of the actions contemplated in clause (i) above.
Section 4.11. Limitation on Sale of Assets.
(a) The Company will not, and will not permit any Restricted Subsidiary
to, make any Asset Sales which, in the aggregate, have a fair market value of
$10 million or more in any 12-month period unless:
(i) the Company (or its Restricted Subsidiaries, as the case
may be) receives consideration at the time of such sale or other
disposition at least equal to the fair market value thereof (as
determined in good faith by the Company's Board of Directors and
evidenced by a Board Resolution in the case of any Asset Sales or
series of related Asset Sales having a fair market value of $15 million
or more);
(ii) not less than 85% of the proceeds received by the Company
(or its Restricted Subsidiaries, as the case may be) from each such
Asset Sale consists of (A) cash, (B) cash equivalents which would
constitute Permitted Financial Investments, (C) Publicly Traded Stock
of a Person primarily engaged in the Principal Business or (D) any
combination of the foregoing, provided, however, that (1) the
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amount of (x) any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet or in the notes
thereto) of the Company or such Restricted Subsidiary (other than
liabilities that are by their terms expressly subordinated to the
Securities or any guarantee thereof) that are assumed by the transferee
of any such assets and (y) any notes or other obligations received by
the Company or any such Restricted Subsidiary from such transferee
that, within 90 days following the closing of such sale or disposition,
are converted by the Company or such Restricted Subsidiary into cash
(to the extent of the cash received), shall be deemed to be cash for
purposes of this provision and (2) the aggregate fair market value (as
determined in good faith by the Board of Directors of the Company,
evidenced by a Board Resolution) of all consideration of the type
specified in clause (C) above received by the Company and its
Restricted Subsidiaries from all Asset Sales after the Issue Date shall
not exceed 15% of Consolidated Net Tangible Assets at the time of such
Asset Sale; and
(iii) the Net Available Proceeds received by the Company (or
its Restricted Subsidiaries, as the case may be) from such Asset Sales
are applied in accordance with paragraph (b) or (c) hereof.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may dispose of property and assets of the Company or its Restricted
Subsidiaries in exchange for capital property and capital assets (i) which are
directly related to the Principal Business; (ii) which are of the same type of
property or assets, or which have the same function, as the properties or assets
being disposed of; and (iii) which have an aggregate fair market value equal to
or greater than the aggregate fair market value of the property and assets being
disposed of, provided, however, that (A) in no event may the Company and its
Restricted Subsidiaries, in any 12-month period, dispose of property or assets
pursuant to this paragraph having an aggregate fair market value of $10 million
or more and (B) with respect to any property or assets being disposed of having
a fair market value of $1 million or more, the Board of Directors of the Company
shall have determined in good faith and evidenced by a Board Resolution, that
the aggregate fair market value of the property and assets being received by the
Company and its Restricted Subsidiaries is equal to or greater than the
aggregate fair market value of the property and assets being disposed of.
(b) The Company may, within 360 days following the receipt of Net
Available Proceeds from any Asset Sale, apply such Net Available Proceeds to:
(i) the repayment of Indebtedness of the Company under the Bank Credit Facility
or other Senior Indebtedness of the Company or Senior Indebtedness of a
Subsidiary Guarantor, provided that any such repayment shall result in a
permanent reduction in the principal amount of such Senior Indebtedness in an
amount equal to the principal amount so repaid; or (ii) make an investment in
capital assets used in the Principal Business.
(c) If, upon completion of the 360-day period (the "Trigger Date"), any
portion of the Net Available Proceeds of any Asset Sale shall not have been
applied by the Company as described in clauses 4.11(b)(i) or (ii) and such
remaining Net Available Proceeds, together with any remaining net cash proceeds
from any prior Asset Sale (such aggregate constituting "Excess Proceeds"),
exceeds $10 million, then the Company will be obligated to make an offer (the
"Net Proceeds Offer") to purchase, from all Holders of the Securities and
holders of any then outstanding Pari Passu Indebtedness required to be
repurchased or repaid on a permanent basis in connection with an Asset Sale, an
aggregate principal amount of Securities and any then outstanding Pari Passu
Indebtedness equal to such Excess Proceeds as follows:
(1) Not later than the 30th day following the Trigger Date,
the Company shall (i) give to the Trustee and each Holder of the
Securities in the manner provided in Section 13.02 hereof, a notice (a
"Purchase Notice") offering to purchase from all Holders of the
Securities the maximum principal amount (expressed as a multiple of
$1,000) of Securities that may be purchased out of an amount (the "Net
Proceeds Offer Amount") equal to the product of such Excess Proceeds
multiplied by a fraction, the numerator of which is the outstanding
principal amount of the Securities and the denominator of which is the
sum of the outstanding principal amount of the Securities and any then
outstanding Pari Passu Indebtedness (subject to proration in the event
such amount is less than the aggregate Offered Price (as
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hereinafter defined) of all Securities tendered), and (ii) to the
extent required by any then outstanding Pari Passu Indebtedness and
provided there is a permanent reduction in the principal amount of such
Pari Passu Indebtedness, the Company shall make an offer to purchase
such Pari Passu Indebtedness (the "Pari Passu Offer") in an amount (the
"Pari Passu Indebtedness Amount") equal to the excess of the Excess
Proceeds over the Net Proceeds Offer Amount.
(2) The offer price for the Securities shall be payable in
cash in an amount equal to 100% of the principal amount of the
Securities tendered pursuant to a Net Proceeds Offer, plus accrued and
unpaid interest, if any, to the date such Net Proceeds Offer is
consummated (the "Offered Price"), in accordance with paragraphs (d)
and (e) of this Section. To the extent that the aggregate Offered Price
of the Securities tendered pursuant to a Net Proceeds Offer is less
than the Net Proceeds Offer Amount relating thereto or the aggregate
amount of the Pari Passu Indebtedness that is purchased or repaid
pursuant to the Pari Passu Offer is less than the Pari Passu
Indebtedness Amount (such shortfall constituting a "Net Proceeds
Deficiency"), the Company may use such Net Proceeds Deficiency, or a
portion thereof, for general corporate purposes, subject to the
limitations of Section 4.10 hereof.
(3) If the aggregate Offered Price of Securities validly
tendered and not withdrawn by Holders thereof exceeds the Net Proceeds
Offer Amount, Securities to be purchased will be selected on a pro rata
basis by the Trustee based on the principal amount of Securities so
tendered. Upon completion of a Net Proceeds Offer and a Pari Passu
Offer, the amount of Excess Proceeds shall be reset to zero.
(4) The Purchase Notice shall set forth a purchase date (the
"Net Proceeds Payment Date"), which shall be on a Business Day no
earlier than 30 days nor later than 70 days from the Trigger Date. The
Purchase Notice shall also state (i) that a Trigger Date with respect
to one or more, Asset Sales has occurred and that such Holder has the
right to require the Company to repurchase such Holders Securities at
the Offered Price, subject to the limitations described in the
foregoing paragraph (3), (ii) any information regarding such Net
Proceeds Offer required to be furnished pursuant to Rule 14e-1 under
the Exchange Act and any other securities laws and regulations
thereunder, (iii) that any Security, or portion thereof, not tendered
or accepted for payment will continue to accrue interest, (iv) that,
unless the Company defaults in depositing money with the Paying Agent
in accordance with paragraph (e) of this Section 4.11, or payment is
otherwise prevented, any Security, or portion thereof, accepted for
payment pursuant to the Net Proceeds Offer shall cease to accrue
interest after the Net Proceeds Payment Date, and (v) the instructions
a Holder must follow in order to have its Securities repurchased in
accordance with paragraph (d) of this Section.
(d) Notice of a Net Proceeds Offer to purchase the Securities will be
made on behalf of the Company not less than 25 business days nor more than 60
business days before the Net Proceeds Payment Date. Securities tendered to the
Company pursuant to a Net Proceeds Offer will cease to accrue interest after the
Net Proceeds Payment Date. If the Net Proceeds Payment Date is on or after an
interest payment record date and on or before the related interest payment date,
any accrued interest will be paid to the person in whose name a Security is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Securities pursuant to the Net
Proceeds Offer.
(e) On the Net Proceeds Payment Date, the Company will (i) accept for
payment Securities or portions thereof pursuant to the Net Proceeds Offer in an
aggregate principal amount equal to the Net Proceeds Offer Amount or such lesser
amount of Securities as has been tendered, (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Securities or portions thereof
so tendered in an aggregate principal amount equal to the lesser of (A) the Net
Proceeds Offer Amount or (B) the aggregate principal amount of all Securities or
portions thereof so tendered, and (iii) deliver, or cause to be delivered to the
Trustee, Securities so accepted together with an Officers' Certificate stating
the aggregate principal amount of Securities or portions thereof tendered to the
Company. If the aggregate principal amount of Securities tendered exceeds the
Net Proceeds Offer Amount, the Trustee will select the Securities to be
purchased (in integral multiples of $1,000) pro rata or by lot based on the
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principal amount of Securities so tendered. The Paying Agent will promptly mail
or deliver to Holders so accepted payment in an amount equal to the purchase
price, and the Company will execute and the Trustee will promptly authenticate
and mail or make available for delivery to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted will be promptly mailed or delivered to the Holder
thereof. The Company will publicly announce the results of the Net Proceeds
Offer on or as soon as practicable after the Net Proceeds Payment Date. For
purposes of this Section 4.11, the Trustee will act as the Paying Agent.
(f) During the period between any Asset Sale and the application of the
Net Available Proceeds therefrom in accordance with this Section 4.11, all Net
Available Proceeds shall be invested in Permitted Financial Investments.
(g) The Company, to the extent applicable and if required by law, will
comply with Section 14 of the Exchange Act and the provisions of Regulation 14E
and any other tender offer rules under the Exchange Act and any other federal
and state securities laws, rules and regulations which may then be applicable to
any offer by the Company to purchase the Securities at the option of the Holders
pursuant to a Net Proceeds Offer.
Section 4.12. Limitation on Liens Securing Indebtedness.
The Company will not, and will not permit any of Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Liens (other than
Permitted Liens) upon any of their respective properties securing (i) any
Indebtedness of the Company (other than Senior Indebtedness of the Company),
unless the Securities are equally and ratably secured or (ii) any Indebtedness
of any of such Subsidiary Guarantor), unless the Subsidiary Guarantor (other
than Senior Indebtedness of Guarantees are equally and ratably secured;
provided, however, that if such Indebtedness is expressly subordinated to the
Securities or the Guarantees, the Lien securing such Indebtedness will be
subordinated and junior to the Lien securing the Securities or the Guarantees,
with the same relative priority as such subordinated Indebtedness of the Company
or a Subsidiary Guarantor will have with respect to the Securities or the
Guarantees, as the case may be.
Section 4.13. Limitation on Payment Restrictions Affecting Restricted
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary of the Company to (i) pay dividends
or make any other distributions on its Capital Stock, or any other interest or
participation in a Restricted Subsidiary, (ii) pay any Indebtedness owed to the
Company or a Restricted Subsidiary of the Company; (iii) make loans or advances
to the Company or a Restricted Subsidiary of the Company; or (iv) transfer any
of its properties or assets to the Company or a Restricted Subsidiary of the
Company (each, a "Payment Restriction"), except for (A) encumbrances or
restrictions with respect to Senior Indebtedness in effect on the Issue Date;
(B) encumbrances under the Bank Credit Facility; (C) consensual encumbrances or
consensual restrictions binding upon any Person at the time such Person becomes
a Restricted Subsidiary of the Company (unless the agreement creating such
consensual encumbrance or consensual restrictions was entered into in connection
with, or in contemplation of, such entity becoming a Subsidiary); (D) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of any Restricted Subsidiary; (E) customary restrictions in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the property
subject to such security agreements and mortgages; (F) customary restrictions in
purchase money obligations for property acquired in the ordinary course of
business restricting the transfer of the property acquired thereby; (G)
consensual encumbrances or consensual restrictions under any agreement that
refinances or replaces any agreement described in clauses (A), (B), (C), (D),
(E) or (F) above, provided that the terms and conditions of any such
restrictions are no less favorable to the Holders of the Securities than those
under the agreement so refinanced or replaced; and (H) any encumbrance or
restriction due to applicable law.
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Section 4.14. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) sell, lease, transfer or otherwise
dispose of any of its properties, assets or securities to, (ii) purchase or
lease any property, assets or securities from, (iii) make any Investment in, or
(iv) enter into or amend any contract or agreement with or for the benefit of,
either (A) an Affiliate of any of them, (B) any Person or Person who is a member
of a group (as such term is used for purposes of Sections 13(d) and 14(d) of the
Exchange Act, whether or not applicable) that, directly or indirectly, is the
beneficial holder of 5% or more of any class of equity securities of the
Company, (C) any Person who is an Affiliate of any such holder, or (D) any
officers, directors, or employees of any of the above (each case under (A), (B),
(C) and (D), an "Affiliate Transaction"), in one or a series of related
transactions (to either party) in excess of $1 million per Affiliate
Transaction, except for transactions evidenced by an Officers' Certificate
addressed and delivered to the Trustee stating that such Affiliate Transaction
is made in good faith, the terms of which are fair and reasonable to the Company
and such Restricted Subsidiary, as the case may be, or, with respect to
Affiliate Transactions between the Company and any of its Subsidiaries, to the
Company; provided, that (x) transactions between or among the Company and any of
its Restricted Subsidiaries shall not be deemed to constitute Affiliate
Transactions and (y) with respect to any Affiliate Transaction with an aggregate
value (to either party) in excess of $5 million, the Company must, prior to the
consummation thereof, obtain a written favorable opinion as to the fairness of
such transaction to itself from a financial point of view from an independent
investment banking firm of national reputation.
Section 4.15. Limitation on Future Senior Subordinated Indebtedness.
The Company shall not incur any Indebtedness other than the Securities
that is subordinated in right of payment to any other Indebtedness of the
Company unless such Indebtedness by its terms, is pari passu with or
subordinated to the Securities. No Subsidiary Guarantor shall incur any
Indebtedness other than the Guarantee of such Subsidiary Guarantor that is
subordinated in right of payment to any other Indebtedness of such Subsidiary
Guarantor unless such Indebtedness, by its terms, is pari passu with or
subordinated to the Guarantee of such Subsidiary Guarantor.
Section 4.16. Change of Control.
(a) Within 30 days following the occurrence of any Change of Control,
the Company shall offer (a "Change of Control Offer") to purchase all
outstanding Securities at a purchase price equal to 101% of the aggregate
principal amount of the Securities, plus accrued and unpaid interest to the date
of purchase. The Change of Control Offer shall be deemed to have commenced upon
mailing of the notice described in Section 4.16(b) and shall terminate 20
Business Days after its commencement, unless a longer offering period is then
required by law. Promptly after the termination of the Change of Control Offer
(the "Change of Control Payment Date"), the Company shall purchase and mail or
deliver payment for all Securities tendered in response to the Change of Control
Offer. If the Change of Control Payment Date is on or after an interest payment
record date and on or before the related interest payment date, any accrued
interest will be paid to the Person in whose name a Security is registered at
the close of business on such record date, and no additional interest will be
payable to Holders who tender Securities pursuant to the Change of Control
Offer.
(b) Within 30 days after any Change of Control, the Company (with
notice to the Trustee), or the Trustee at the Company's request, will mail or
cause to be mailed to all Holders on the date of the Change of Control a notice
(the "Change of Control Notice") of the occurrence of such Change of Control and
of the Holders' rights arising as a result thereof. The Change of Control Notice
will contain all instructions and materials necessary to enable Holders to
tender their Securities to the Company. The Change of Control Notice, which
shall govern the terms of the Change of Control Offer, shall state: (1) that the
Change of Control Offer is being made pursuant to this Section 4.16; (2) the
purchase price and the Change of Control Payment Date; (3) that any Security not
tendered
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will continue to accrue interest; (4) that any Security accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest on the
Change of Control Payment Date; (5) that Holders electing to have a Security
purchased pursuant to any Change of Control Offer will be required to surrender
the Security, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice prior to
termination of the Change of Control Offer; (6) that Holders will be entitled to
withdraw their election if the Company, depositary or Paying Agent, as the case
may be, receives, not later than the expiration of the Change of Control Offer,
or such longer period as may be required by law, a facsimile transmission or
letter setting forth the name of the Holder, the certificate or other
identifying number, the principal amount of the Security the Holder delivered
for purchase and a statement that such Holder is withdrawing his election to
have the Security purchased; and (7) that Holders whose Securities are purchased
only in part will be issued Securities equal in principal amount to the
unpurchased portion of the Securities surrendered.
(c) On the Change of Control Payment Date. the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Change of
Control Notice, (ii) if the Company appoints a depository or Paying Agent,
deposit with such depository or Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the aggregate principal amount of Securities or portions
thereof tendered to the Company. The depository, the Company or the Paying
Agent, as the case may be, shall promptly mail to the Holder of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail to such Holders a new Security equal in principal
amount to any unpurchased portion of the Security surrendered. The Company will
publicly announce the results of the Change of Control offer on or as soon as
practicable after the Change of Control Payment Date. For purposes of this
Section 4.16, the Trustee shall act as the Paying Agent.
(d) The Company, to the extent applicable and if required by law, will
comply with Section 14 of the Exchange Act and the provisions of Regulation 14E
and any other tender offer rules under the Exchange Act and any other federal
and state securities laws, rules and regulations which may then be applicable to
any offer by the Company to purchase the Securities at the option of the Holders
upon a Change of Control.
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge with any Person or
convey, transfer or lease all or substantially all of its property to any
Person, unless:
(1) the Company survives such merger or the Person formed by
such consolidation or into which the Company is merged or that acquires
by conveyance or transfer, or which leases, all or substantially all of
the property of the Company is a corporation organized and existing
under the laws of the United States of America, any state thereof or
the District of Columbia and expressly assumes, by supplemental
indenture, the due and punctual payment of the principal of, premium,
if any, and interest on, all the Securities and the performance of
every other covenant and obligation of the Company under the Indenture;
(2) immediately before and after giving effect to such
transaction no Default or Event of Default exists;
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(3) immediately after giving effect to such transaction on a
pro forma basis, the Consolidated Tangible Net Worth of the Company (or
the surviving or transferee entity) is equal to or greater than the
Consolidated Tangible Net Worth of the Company immediately before such
transaction; and
(4) immediately after giving effect to such transaction on a
pro forma basis, the Company (or the surviving or transferee entity)
would be able to incur $1.00 of additional Indebtedness under the test
described in Section 4.09(a).
In connection with any consolidation. merger, conveyance, transfer or
lease contemplated by this Section 5.01, the Company shall deliver to the
Trustee prior to the consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this Indenture.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation, merger, lease, conveyance or transfer in
accordance with Section 5.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such lease, conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor had been named as the Company herein and thereafter (except
in the case of a lease) the predecessor corporation will be relieved of all
further obligations and covenants under this Indenture and the Securities.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs upon:
(1) default by the Company or any Subsidiary Guarantor in the
payment of principal of, or premium, if any, on the Securities when due
and payable at maturity, upon repurchase pursuant to Section 4.11 or
4.16, upon acceleration or otherwise (whether or not such payment shall
be prohibited by the provisions of Articles Ten or Twelve);
(2) default by the Company or any Subsidiary Guarantor in the
payment of any installment of interest on the Securities when due and
payable and continuance of such default for 30 days (whether or not
such payment shall be prohibited by the provisions of Articles Ten or
Twelve);
(3) default by the Company or any Subsidiary Guarantor in the
deposit of any optional redemption payment, when and as due and payable
pursuant to Article Three;
(4) default on any other Indebtedness of the Company, any
Subsidiary Guarantor or any Restricted Subsidiary if such default
results in the acceleration of the maturity of any such Indebtedness
having a principal amount of $5.0 million or more individually or,
taken together with the principal amount of any other such Indebtedness
in default or the maturity of which has been so accelerated, in the
aggregate;
(5) default in the performance, or breach, of any other
covenant or agreement of the Company or any Subsidiary Guarantor in
this Indenture, the Securities or the Guarantees and failure to
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remedy such default within a period of 60 days after written notice
thereof from the Trustee or Holders of at least 25% in principal amount
of the then outstanding Securities;
(6) the entry by a court of one or more judgments or orders
against the Company, any Subsidiary Guarantor or any Restricted
Subsidiary in an aggregate amount in excess of $5.0 million (net of
applicable insurance coverage by a third party insurer which is
acknowledged in writing by such insurer) that has not been vacated,
discharged, satisfied or stayed pending appeal within 60 days from the
entry thereof,
(7) a Guarantee by a Subsidiary Guarantor shall cease to be in
full force and effect (other than a release of a Guarantee in
accordance with Section 11.04) or any Subsidiary Guarantor shall deny
or disaffirm its obligations with respect thereto;
(8) the Company, any Subsidiary Guarantor or any Restricted
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing that it generally is unable to
pay its debts as the same become due; or
(9) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief (with respect to the petition
commencing such case) against the Company, any Subsidiary
Guarantor or any Restricted Subsidiary in an involuntary case
or proceeding,
(B) appoints a Custodian of the Company, any
Subsidiary Guarantor or any Restricted Subsidiary or for all
or substantially all of its respective property, or
(C) orders the liquidation of the Company, any
Subsidiary Guarantor or any Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 6.02. Acceleration.
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If an Event of Default (other than an Event of Default specified in
clauses 8 and 9) under Section 6.01 occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the outstanding Securities may declare the unpaid principal of, premium, if any,
and accrued and unpaid interest on, all the Securities then outstanding to be
due and payable, by a notice in writing to the Company (and to the Trustee, if
given by Holders) and upon any such declaration such principal, premium, if any,
and accrued and unpaid interest shall become immediately due and payable,
notwithstanding anything contained in this Indenture or the Securities to the
contrary. If an Event of Default specified in clauses 8 or 9 above occurs, all
unpaid principal of, and accrued interest on, the Securities then outstanding
will become due and payable, without any declaration or other act on the part of
the Trustee or any Holder.
If (i) (A) the Company or any Subsidiary Guarantor has paid or
deposited with such Trustee a sum sufficient to pay (1) all overdue installments
of interest on all the Securities, (2) the principal of, and premium, if any, on
any Securities that have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor in
the Securities, (3) to the extent that payment of such interest is lawful,
interest on the defaulted interest at the rate or rates prescribed therefor in
the Securities, and (4) all money paid or advanced by the Trustee thereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; (B) all Events of Default, other than the
nonpayment of the principal of any Securities that have become due solely by
such declaration of acceleration, have been cured or waived as provided in the
Indenture; and (C) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction and (ii) the Holders of a majority in
principal amount of then outstanding Securities give written notice to the
Company, the Subsidiary Guarantors and the Trustee of their desire to rescind
and annul a declaration of acceleration and its consequences, then such
declaration of acceleration shall be deemed rescinded and annulled. No such
rescission will affect any subsequent Event of Default or impair any right
consequent thereon.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue, in its own name and as trustee of an express trust, any available remedy
by proceeding at law or in equity to collect the payment of principal or
interest on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
Section 6.04 Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of at least a majority
in principal amount of Securities then outstanding by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default or Event of Default in payment of principal or interest on the
Securities, including any optional redemption payments or Change of Control or
Net Proceeds Offer payments.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Securities then
outstanding will have the right, by an instrument or concurrent instruments in
writing executed and delivered to the Trustee, to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee under this Indenture or exercising any trust or power conferred on such
Trustee, provided that (i) such direction is not in conflict with any
rule of law or with this Indenture and (ii) the Trustee may take any other
action deemed proper by such Trustee that is not inconsistent with such
direction.
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Section 6.06. Limitation on Remedies.
No Holder of any of the Securities will have any right to institute any
proceeding, judicial or otherwise, or for the appointment of a receiver or
trustee or pursue any remedy under this Indenture, unless:
(1) such Holder has previously given notice to the Trustee of
a continuing Event of Default,
(2) the Holders of not less than 25% in principal amount of
the outstanding Securities have made written request to such Trustee to
pursue such remedy, including, if applicable, to institute proceedings
in respect of such Event of Default in its own name as Trustee under
the Indenture,
(3) such Holder or Holders have offered to such Trustee
reasonable indemnity and security against the costs, expenses and
liabilities to be incurred in compliance with such request,
(4) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any proceeding,
and
(5) no direction inconsistent with such written request has
been given to such Trustee during such 60-day period by the Holders of
a majority in principal amount of the outstanding Securities.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over other Holders.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the Holder of
any Securities will have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such Securities on the
stated maturity therefor and to institute suit for the enforcement of any such
payment, and such right may not be impaired without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium, if any, or
interest specified in Section 6.01(l), (2) or (3) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any Subsidiary Guarantor for the whole amount of
principal, premium, if any, and interest remaining unpaid with respect to the
Securities, and interest on overdue principal and premium, if any, and, to the
extent lawful, interest on overdue interest, and such further amounts as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation and expenses of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
(a) The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Holders allowed in any judicial proceedings relative to the
Company, the Subsidiary Guarantors, their creditors or their property and may
collect and receive any money or other property payable or deliverable on any
such claims and to distribute the same.
(b) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders of Senior Indebtedness to the extent required by
Article Ten;
Third: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable
on the Securities for principal and interest, respectively;
and
Fourth: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorney's fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. The foregoing shall not apply to a suit by the Trustee, a suit by a
holder pursuant to Section 6.07 hereof, or a suit by Holders or more than 10% in
principal amount of the then Outstanding Securities.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such rights and powers vested in it by this Indenture and use the
same degree of care and skill in such exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth (or incorporated by reference) in this Indenture
and no implied covenants or obligations shall be read into this
Indenture against Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph (c) does not limit the effect of paragraph
(b) of this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by an officer of the Trustee, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05, and the Trustee shall be
entitled from time to time to request such a direction.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall be under no obligation and may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely on and shall be protected in
acting or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture.
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Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Subsidiaries or Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is actually known to
the Trustee, the Trustee shall mail to each Holder pursuant to Section 13.02 a
notice of the Default within 90 days after the occurrence thereof. Except in the
case of a Default in any payment on any Security, the Trustee may withhold the
notice if and so long as the board of directors, executive committee or a trust
committee of its directors and/or officers in good faith determines that
withholding the notice is in the interests of Holders.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each April 15, beginning with April 15, 1998, the
Trustee shall mail to each Holder a brief report dated as of such April 15 that
complies with TIA Section 313(a), but only if such report is required in any
year under TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
filed with the Commission and each stock exchange on which the Securities are
listed. The Company shall promptly notify the Trustee in writing if the
Securities become listed on any national securities exchange or of any delisting
thereof.
Section 7.07. Compensation and Indemnity.
The Company and the Subsidiary Guarantors jointly and severally agree
to pay the Trustee from time to time such compensation as the Company and the
Trustee shall from time to time agree in writing for its services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust). The Company and
the Subsidiary Guarantors jointly and severally agree to reimburse the Trustee
upon request for all reasonable out-of-pocket expenses, disbursements and
advances incurred by it. Such expenses may include the reasonable compensation
and expenses of the Trustee's agents and counsel.
The Trustee shall not be under any obligation to institute any suit, or
take any remedial action under this Indenture, or to enter any appearance or in
any way defend any suit in which it may be a defendant, or to take any steps in
the execution of the trusts created hereby or thereby or in the enforcement of
any rights and powers under this Indenture, until it shall be indemnified to its
satisfaction against any and all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provisions of this
Indenture, including compensation for services, costs, expenses, outlays,
counsel fees and other disbursements, and against all liability not due to its
negligence or willful misconduct. The Company and the Subsidiary Guarantors
jointly and severally agree to indemnify each of the Trustee and any predecessor
trustee and their agents for and to hold them harmless against any and all loss,
liability, damage, claim or expense, including taxes (other than taxes based on
the income of Trustee) incurred by it in connection with the acceptance and
administration of the trust and its duties hereunder
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as Trustee, Registrar and/or Paying Agent including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The Trustee shall
notify the Company and the Subsidiary Guarantors of any claim for which it may
seek indemnity; however. unless the position of the Company is prejudiced by
such failure, the failure of the Trustee to promptly notify the Company shall
not limit its right to indemnification. The Company shall defend each such claim
and the Trustee shall cooperate in the defense. The Trustee may retain separate
counsel if the Trustee shall have been reasonably advised by such counsel that
there may be one or more legal defenses available to it that are different from
or additional to those available to the Company and in the reasonable judgment
of such counsel it is advisable for the Trustee to employ separate counsel, and
the Company shall reimburse the Trustee for the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent.
Neither the Company nor the Subsidiary Guarantors shall be obligated to
reimburse any expense or indemnify against any loss or liability incurred by the
Trustee through the Trustee's negligence, willful misconduct or breach of its
duties under this Indenture.
To secure the payment obligations of the Company and the Subsidiary
Guarantors in this Section, the Trustee shall have a lien prior to that of the
Holders of the Securities on all money or property held or collected by the
Trustee for any amount owing it or any predecessor trustee pursuant to this
section, except that held in trust to pay principal of and interest on
particular Securities.
When the Trustee incurs expenses or renders services after the
occurrence of any Event of Default specified in Sections 6.01(8) or (9), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company and the Subsidiary
Guarantors. The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee, in writing. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting as Trustee
hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and the Subsidiary
Guarantors. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Holder.
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If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), the Company or the Holders of a majority in principal amount of
the Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee. Any successor Trustee shall comply with
TIA Section 310(a)(5).
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation, the
successor corporation without any further act shall be the successor Trustee;
provided such corporation or association shall be otherwise eligible and
qualified under this Article.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a combined
capital and surplus of at least $100,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall also comply with TIA
Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations.
(a) This Indenture shall cease to be of further effect (subject to
Section 8.05) when all outstanding Securities theretofore authenticated and
issued hereunder have been delivered (other than any Securities which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.07) to the Trustee for cancellation and the Company or the
Subsidiary Guarantors have paid all sums payable hereunder and under the
Securities.
(b) In addition to the provisions of Section 8.01(a), at the Company's
option, either (i) the Company and all Subsidiary Guarantors shall be deemed to
have been discharged from their respective obligations with respect to the
Securities and the provisions of this Indenture (subject to Section 8.05) on the
91st day after the applicable conditions set forth below have been satisfied or
(ii) the Company and all Subsidiary Guarantors shall cease to be under any
obligation to comply with any term, provision or condition set forth in Sections
4.02, 4.03, 4.0 through 4.16 and 5.01 and Articles Ten and Eleven with respect
to the Securities at any time after the applicable conditions set forth below
have been satisfied:
(1) the Company or any Subsidiary Guarantor shall have
deposited or caused to be deposited irrevocably with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders (i) U.S. Legal Tender
or (ii) U.S. Government Obligations, which through the payment of
interest and principal in respect thereof in accordance with their
terms will provide (without any reinvestment of such interest or
principal), not later than one day before the due date of any payment,
U.S. Legal Tender or (iii) a combination of (i) and (ii), in an amount
sufficient, in the opinion (with respect
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to (ii) and (iii)) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee at or prior to the time of such deposit, to
pay and discharge each installment of principal of, premium, if any,
and interest on the outstanding Securities on the dates such
installments are due;
(2) the Company shall have delivered to the Trustee an
Officers' Certificate certifying as to whether the Securities are then
listed on a national securities exchange;
(3) if the Securities are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Company's exercise of its option
under this Section 8.01 would not cause the Securities to be delisted;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of
such deposit and such deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which the
Company or a Subsidiary Guarantor is a party or by which any of them is
bound, as evidenced to the Trustee in an Officers' Certificate
delivered to the Trustee concurrently with such deposit;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders will not recognize income, gain
or loss for federal income tax purposes as a result of the Company's
exercise of its option under this Section 8.01 and will be subject to
federal income tax on the same amount and in the same manner and at the
same time as would have been the case if such option had not been
exercised, and, in the case of the Securities being discharged,
accompanied by a ruling to that effect received from or published by
the Internal Revenue Service (it being understood that (A) such Opinion
of Counsel shall also state that such ruling is consistent with the
conclusions reached in such Opinion of Counsel and (B) the Trustee
shall be under no obligation to investigate the basis of correctness of
such ruling);
(6) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Company's exercise of its option
under this Section 8.01 will not result in any of the Company, the
Trustee or the trust created by the Company's deposit of funds
hereunder becoming or being deemed to be an "investment company" under
the Investment Company Act of 1940, as amended;
(7) the Company or any Subsidiary Guarantor shall have paid or
duly provided for payment of all amounts then due to the Trustee
pursuant to Section 7.07; and
(8) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for in this Section 8.01 relating to the
satisfaction and discharge of this Indenture have been complied with.
Section 8.02. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with the provisions of the Securities and this Indenture to the
payment of principal of, premium, if any, and interest on the Securities.
Section 8.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any money or securities held by them at any time in excess of
amounts then required to pay principal of or interest on the Securities. The
Trustee and the Paying Agent shall pay to the Company upon written request any
money held by
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them for the payment of principal or interest that remains unclaimed for two
years; provided, however, that the Trustee or such Paying Agent before being
required to make any such repayment, may at the expense of the Company cause to
be published once in a newspaper of general circulation in The City of New York
or mail to each such Holder notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing any unclaimed balance of such money then
remaining will be paid to the Company. After repayment to the Company, any
Holder entitled to such money shall thereafter, as an unsecured general
creditor, look (unless an applicable abandoned property law designates another
Person) only to the Company for payment, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
Section 8.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and the Subsidiary Guarantors' obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8,01; provided. however, that if the Company or any Subsidiary
Guarantor has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company or such Subsidiary
Guarantor shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
Section 8.05. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of
the Securities referred to in Section 8.01(a) and (b), the respective
obligations of the Company, the Subsidiary Guarantors and the Trustee under
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 4.04, 6.07, 7.07, 7.08, 8.02,
8.03, 8.04, 11.03 and 11.04 and Article Three shall survive until the Securities
are no longer outstanding, and thereafter the obligations of the Company and the
Trustee under Sections 7.07, 8.02 and 8.03 and 8.04 shall survive. Nothing
contained in this Article Eight shall abrogate any of the obligations or duties
of the Trustee under this Indenture.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company, the Subsidiary Guarantors and the Trustee may modify,
amend or supplement this Indenture or the Securities without notice to or
consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Sections 5.01 or 11.02;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) to reflect the addition or release of any Subsidiary
Guarantor, as provided for by this Indenture;
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(5) to comply with any requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
TIA; or
(6) to make any change that would provide any additional
benefit or rights to the Holders or that does not adversely affect the
rights of any Holder.
Upon the request of the Company and the Subsidiary Guarantors,
accompanied by a Board Resolution of the Company and a resolution of the board
of directors, board of trustees or managing partners of each Subsidiary
Guarantor authorizing the execution of any such supplemental indenture, and upon
receipt by the Trustee of the documents described in Section 9.06, the Trustee
may, but shall not be obligated to, join with the Company and the Subsidiary
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and make any further appropriate
agreements and stipulations that may be therein contained. After an amendment or
waiver under this Section becomes effective, the Company shall mail to the
Holders of each Security affected thereby a notice briefly describing the
amendment or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 9.02. With Consent of Holders.
Except as provided below in this Section 9.02, the Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
with the written consent (including consents obtained in connection with a
tender offer or exchange offer for Securities or a solicitation of consents in
respect of Securities, provided that in each case such offer or solicitation is
made to all Holders of then outstanding Securities on equal terms) of the
Holders of at least a majority in principal amount of the then outstanding
Securities.
Upon the request of the Company and the Subsidiary Guarantors,
accompanied by a Board Resolution of the Company and a resolution of the board
of directors, board of trustees or managing partners of each Subsidiary
Guarantor authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of the Holders as
aforesaid, and upon receipt by the Trustee of the Opinion of Counsel documents
described in Section 9.06, the Trustee may, but shall not be obligated to, join
with the Company and the Subsidiary Guarantors in the execution of such
supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
The Holders of a majority in principal amount of the then outstanding
Securities may waive compliance in a particular instance by the Company or the
Subsidiary Guarantors with any provision of this Indenture or the Securities
(including waivers obtained in connection with a tender offer or exchange offer
for Securities or a solicitation of consents in respect of Securities, provided
that in each case such offer or solicitation is made to all Holders of the then
outstanding Securities on equal terms). However, without the consent of each
Holder affected, an amendment or waiver under this Section may not:
(1) reduce the percentage of principal amount of Securities
whose Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture or the Securities;
(2) reduce the rate or change the time for payment of
interest, including defaulted interest, on the Securities;
(3) reduce the principal amount of any Security or change the
Maturity Date of the Securities;
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(4) reduce the redemption price, including premium, if any,
payable upon the redemption of any Security or change the time at which
any Security may be redeemed;
(5) reduce the repurchase price, including premium, if any,
payable upon the repurchase of any Security pursuant to Section 4.11 or
4.16, or change the time at which any Security may or shall be
repurchased thereunder;
(6) except as otherwise provided in this Indenture, waive a
continuing Default or Event of Default in the payment of the principal
of, premium, if any, or interest on the Securities;
(7) make any Security payable in money other than that stated
in the Security;
(8) impair the right to institute suit for the enforcement of
principal of, premium, if any, or interest on any Security pursuant to
Sections 6.07 or 6.08, except as limited by Section 6.06; or
(9) make any change in Section 6.04 or Section 6.07 or in this
sentence of this Section 9.02.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of any Securities with respect to which such consent is required or sought as of
a date identified by the Trustee in a notice furnished to Holders in accordance
with the terms of this Indenture.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver by a Holder of a
Security shall bind the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
until an amendment, supplement or waiver becomes effective, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion of a
Security. For such revocation to be effective, the Trustee must receive the
notice of revocation before the date the amendment, supplement or waiver becomes
effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver. If the Company elects to fix a record date for such purpose, the record
date shall be fixed at (i) the later of 30 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 2.05, or (ii) such other
date as the Company shall designate. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons. shall be entitled to consent to such amendment or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent shall be valid or effective for
more than 90 days after such record date unless consent from the Holders of the
principal amount of Securities required hereunder for such amendment or waiver
to be effective also shall have been given and not revoked within such 90-day
period.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it makes a change described in any of clauses (1)
through (9) of Section 9.02. In that case the amendment, supplement or
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waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
Section 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Section 9.06. Trustee Protected.
The Trustee shall sign any amendment or supplement or waiver authorized
pursuant to this Article. In signing such amendment or supplement or waiver the
Trustee shall be entitled to receive, and (subject to Article Seven) shall be
fully protected in relying upon, an Opinion of Counsel stating that such
amendment or supplement or waiver is authorized or permitted by and complies
with this Indenture. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
ARTICLE TEN
SUBORDINATION OF SECURITIES
Section 10.01. Securities Subordinated to Senior Indebtedness.
The Company, for itself and it successors, and each Holder, by his
acceptance of Securities, agrees that the payment of the principal of, premium,
if any, and interest on the Securities is subordinated, to the extent and in the
manner provided in this Article Ten, to the prior payment in full of all Senior
Indebtedness of the Company (hereinafter in this Article Ten referred to as
"Senior Indebtedness"). The Securities shall rank pari passu in right of payment
with all Pari Passu Indebtedness of the Company.
This Article Ten shall constitute a continuing offer to all Persons who
become holders of, or continue to hold, Senior Indebtedness, and such provisions
are made for the benefit of the holders of Senior Indebtedness, and such holders
are made obligees hereunder and any one or more of them may enforce such
provisions.
Section 10.02. No Payment on Securities in Certain Circumstances.
Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, unless and until all principal thereof, premium, if
any, interest thereon and other amounts due thereon shall first be paid in full,
no payment shall be made by or on behalf of the Company with respect to the
principal of, premium, if any, interest on or other amounts owing on the
Securities (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 Securities.
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
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default or event of default which would result upon any payment with respect to
the Securities) 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
Securities 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 Securities (i) in the case of a Payment Default, upon the date
such Payment Default is cured or waived by the holders of Senior Indebtedness to
which such Payment Default relates and (ii) in the case of a default or event of
default (other than a Payment Default) with respect to Designated Senior
Indebtedness, on the earlier of (A) the date such default or event of default is
cured or (B) the expiration of the Payment Blockage Period with respect thereto
if, in the case of this clause (B), this Article Ten otherwise does not prohibit
such payment.
In furtherance of the provisions of Section 10.01, in the event that,
notwithstanding the foregoing provisions of this Section 10.02, any payment
(other than a payment in the form of Subordinated Securities) with respect to
the principal of, premium, if any, or interest on the Securities shall be made
by or on behalf of the Company, and received by the Trustee, by any Holder or by
any such Paying Agent (or, if the Company is acting as its own Paying Agent,
money for any such payment shall be segregated and held in trust), at a time
when such payment was prohibited by the provisions of this Section 10.02, then,
unless and until such payment is no longer prohibited by this Section 10.02,
such payment (subject to the provisions of Section 10.06 and 10.07) shall be
received and held in trust by the Trustee or such Holder or Paying Agent for the
benefit of and shall be immediately paid over to the holders of Senior
Indebtedness or their Representative, ratably according to the aggregate amounts
remaining unpaid on account of the principal of, premium, if any, and interest
on the Senior Indebtedness held or represented by each, for application to the
payment of all Senior Indebtedness in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the benefit of the
holders of Senior Indebtedness.
The provisions of this Section 10.02 shall not modify or limit in any
way the application of Section 10.03.
The Company shall give prompt written notice to the Trustee of any
default in the payment of any Senior Indebtedness or any acceleration under any
Senior Indebtedness or under any agreement pursuant to which Senior Indebtedness
may have been issued. Failure to give such notice shall not affect the
subordination of the Securities to the Senior Indebtedness or the application of
the other provisions provided in this Article Ten.
Section 10.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of
the Company.
In the event of any Insolvency or Liquidation Proceeding with respect
to the Company, all amounts payable in respect of any Senior Indebtedness shall
first be paid in full before the Holders are entitled to receive any direct or
indirect payment or distribution of any cash, property or securities (other than
Subordinated Securities of
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the Company) on account of principal of or interest on the Securities or any
other payment with respect to the Securities.
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
Securities which may be payable or deliverable in respect of the Securities in
any such Insolvency or Liquidation Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section 10.03, the Trustee or any Paying Agent or the Holder of any Security
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 Securities, 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 Securities, 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 10.04. Holders to Be Subrogated to Rights of Holders of Senior
Indebtedness.
After all amounts payable under or in respect of Senior Indebtedness
(whether or not due) are paid in full, the Holders shall be subrogated (without
any duty on the part of the holders of Senior Indebtedness to warrant, create,
effectuate, preserve or protect such subrogation), to the extent of the payments
or distributions made to the holders of Senior Indebtedness pursuant to the
provisions of this Article Ten (equally and ratably with the holders of all
other indebtedness of the Company which by its express terms is subordinate and
subject in right of payment to Senior Indebtedness to substantially the same
extent as the Securities are so subordinate and subject in right of payment and
which is entitled to like rights and subrogation), to the rights of the holders
of Senior Indebtedness to receive payments and distributions of cash, property
and securities applicable to the Senior Indebtedness, until the principal of and
interest on the Securities shall be paid in full. For the purpose of such
subrogation no such payments or distributions to the holders of Senior
Indebtedness by or on behalf of the Company, or by or on behalf of the Holders
by virtue of this Article Ten, which otherwise would have been made to the
Holders shall, as between the Company and the Holders, be deemed to be payment
by the Company to or on account of the Senior Indebtedness, it being understood
that the provisions of this Article Ten are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Indebtedness, on the other hand.
Section 10.05. Obligations of the Company Unconditional.
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Nothing contained in this Article Ten or elsewhere in this Indenture or
in any Security is intended to or shall impair, as between the Company and the
Holders, the obligations of the Company, which are absolute and unconditional,
to pay to the Holders the principal of and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall effect the relative rights of the Holders and creditors of
the Company, other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Ten, of the holders
of Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Upon any distribution of assets
of the Company referred to in this Article Ten, the Trustee, subject to the
provisions of Section 7.01, and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
Insolvency or Liquidation Proceeding is pending, or a certificate of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Ten.
Section 10.06. Trustee Entitled to Assume Payments, Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until the Trustee or any Paying Agent shall have received
written notice at the address specified in Section 13.02 thereof from the
Company or from one or more holders of Senior Indebtedness or from any
Representative therefor and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 7.01, shall be entitled in all
respects conclusively to assume that no such fact exists. Nothing in this
Section 10.06 is intended to or shall relieve any Holder from the obligations
imposed under Sections 10.02 and 10.03 with respect to money or other
distributions received in violation of the provisions thereof.
Section 10.07. Application by Trustee of Assets Deposited With It.
All money and U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Section 8.01 shall be for the sole
benefit of the Holders and shall not be subject to this Article Ten. Otherwise,
any deposit of assets by the Company with the Trustee or any Paying Agent
(whether or not in trust) for the payment of principal of premium, if any, or
interest on any Securities shall be subject to the provisions of this Article
Ten; provided that, if prior to the second Business Day preceding the date on
which by the terms of this Indenture any such assets may become distributable
for any purpose (including without limitation, the payment of either principal
of or interest on any Security) the Trustee or such Paying Agent shall not have
received with respect to such assets the written notice provided for in Section
10.06, then the Trustee or such Paying Agent shall have full power and authority
to receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date. The preceding sentence shall be construed
solely for the benefit of the Trustee and each Paying Agent and shall not
otherwise affect the rights of holders of Senior Indebtedness.
Section 10.08. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination provisions in this Article Ten shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
The holders of Senior Indebtedness may extend, renew, modify or amend the terms
of the Senior
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Indebtedness or any security therefor and release, sell or exchange such
security and otherwise deal freely with the Company, all without affecting the
liabilities and obligations of the parties to this Indenture or the Holders.
Section 10.09. Holders Authorize Trustee to Effectuate Subordination of
Securities.
Each Holder of Securities by his acceptance thereof (i) authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Ten and to protect the rights of the Holders pursuant to this Indenture,
and (ii) appoints the Trustee his attorney-in-fact for such purpose, including
in the event of any Insolvency or Liquidation Proceeding with respect to the
Company, the timely filing of a claim for the unpaid balance of his Securities
in the form required in said proceeding and the causing of such claim to be
approved. If the Trustee shall not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Indebtedness
or their Representative shall have the right to file an appropriate claim for
and on behalf of the Holders. Nothing herein contained shall be deemed to
authorize the Trustee or any holder of Senior Indebtedness or their
Representative to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder, or to authorize the
Trustee or any holder of Senior Indebtedness or their Representative to vote in
respect of the claim of any Holder in any such proceeding.
Section 10.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Ten in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Section 10.11. Article Ten Not to Prevent Events of Default.
The failure to make a payment of principal of or interest on the
Securities by reason of any provision of this Article Ten shall not be construed
as preventing the occurrence of a Default or an Event of Default.
Section 10.12. Payment.
A payment with respect to a Security or with respect to principal of or
interest on a Security shall include, without limitation, payment of principal
of (and premium, if any) and interest on any Security, any depositing of funds
under Article Eight, any payment on account of any mandatory or optional
repurchase or redemption of any Security (including payments pursuant to Article
Three or Section 4.10 or Section 4.16) and any payment or recovery on any claim
(whether Section 4.10 or Section 4.16) and any payment or recovery on any claim
(whether for rescission damages and whether based on contract, tort, duty
imposed by law, or any other theory of liability) relating to or arising out of
the offer, sale or purchase of any Security, provided that any such payment,
deposit, other payment or recovery (i) not prohibited pursuant to this Article
Ten at the time actually made shall not be subject to any recovery by any holder
of Senior Indebtedness or Representative therefor or other Person pursuant to
this Article Ten at any time thereafter and (ii) made by or from any Person
other than the Company shall not be subject to any recovery by any holder of
Senior Indebtedness or Representative therefor or other Person pursuant to
this Article Ten at any time thereafter except to the extent such Person
recovers any such amount paid from the Company, whether pursuant to rights of
indemnity, rescission or otherwise.
Section 10.13 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
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covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior Indebtedness
shall be read into this Indenture against the Trustee.
Nothing in this Article shall apply to the claims of, or payments to,
the Trustee under or pursuant to Section 7.07.
ARTICLE ELEVEN
GUARANTEES
Section 11.01. Unconditional Guarantee.
Each Subsidiary Guarantor hereby, jointly and severally, unconditionally
guarantees (such guarantee to be referred to herein as the "Guarantee") to each
Holder and to the Trustee the due and punctual payment of the principal of,
premium, if any, and interest on the Securities and all other amounts due and
payable under this Indenture and the Securities by the Company whether at
maturity, by acceleration, redemption, repurchase or otherwise, including,
without limitation, interest on the overdue principal of, premium, if any, and
interest on the Securities, to the extent lawful, all in accordance with the
terms hereof and thereof; subject, however, to the limitations set forth in
Article Eleven and Article Twelve.
Failing payment when due of any amount so guaranteed for whatever
reason, the Subsidiary Guarantors will be jointly and severally obligated to pay
the same immediately. Each Subsidiary Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture. the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each Subsidiary Guarantor hereby waives diligence,
presentment, demand of payments filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that this Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and in this Guarantee.
If any Holder or the Trustee is required by any court or otherwise to return to
the Company, any Subsidiary Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to the Company or any Subsidiary
Guarantor, any amount paid by the Company or any Subsidiary Guarantor to the
Trustee or such Holder, this Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees
it shall not be entitled to any right of subrogation in relation to the Holders
in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as
between each Subsidiary Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any acceleration of such obligations as provided in Article Six,
such obligations (whether or not due and payable) shall forthwith become due and
payable by each Subsidiary Guarantor for the purpose of this Guarantee.
The guarantee of each Subsidiary Guarantor herein shall be, in the
manner and to the extent set forth in Article Twelve, subordinated in right of
payment to the prior payment when due of the principal of, premium, if any,
accrued and unpaid interest and all other amounts owing on all existing and
future Senior Indebtedness of such Subsidiary Guarantor and of the Company, as
the case may be, and senior to the right of payment of principal of, premium, if
any, and accrued and unpaid interest on all existing and future Subordinated
Indebtedness of such Subsidiary Guarantor.
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Section 11.02. Subsidiary Guarantors May Consolidate. etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or another Subsidiary Guarantor or shall prevent any sale or
conveyance of all or substantially all of its assets to the Company or another
Subsidiary Guarantor.
(b) The Company may not sell the Capital Stock of a Subsidiary
Guarantor, and a Subsidiary Guarantor may not consolidate with or merge into or
sell all or substantially all of its assets (in a single transaction or series
of related transactions) to any Person other than the Company or another
Subsidiary Guarantor (whether or not affiliated with the Company or the
Subsidiary Guarantor), unless (i) with respect to a consolidation or merger of
such Subsidiary Guarantor, either (A)(1) the surviving entity is a Subsidiary of
the Company or, as a result of the transaction, becomes a Subsidiary of the
Company, (2) the surviving entity remains a Restricted Subsidiary of the Company
or, simultaneously with the consummation of the transaction, is designated as a
Restricted Subsidiary of the Company, (3) immediately after giving effect to
such transaction on a pro forma basis, the Consolidated Tangible Net Worth of
the surviving entity is equal to or greater than the Consolidated Tangible Net
Worth of such Subsidiary Guarantor immediately before such transaction, (4)
immediately after giving effect to such transaction on a pro forma basis, the
Company would be able to incur $1.00 of additional Indebtedness under the test
described in Section 4.09(a), (5) if the surviving entity is not the Subsidiary
Guarantor, the surviving entity agrees to assume such Subsidiary Guarantor's
Guarantee and all its obligations pursuant to this Indenture in accordance with
the provisions of Section 11.03, and (6) such transaction does not (x) violate
any covenant in the Indenture or (y) result in a Default or an Event of Default
immediately thereafter that is continuing or (B)(1) such transaction is made in
accordance with the covenant in Section 4.11 and (2) such transaction does not
(x) violate any other covenant in the Indenture or (y) result in a Default or
Event of Default immediately thereafter that is continuing and (ii) with respect
to the sale of the Capital Stock or all or substantially all of the assets of
such Subsidiary Guarantor, (A) such transaction is made in accordance with the
covenant in Section 4.11 and (B) such transaction does not (x) violate any other
covenants in the Indenture or (y) result in a Default or Event of Default
immediately thereafter that is continuing. In the case of any such
consolidation, merger, sale or conveyance involving the assumption by the
successor entity of a Subsidiary Guarantor's obligations under the Indenture,
such successor entity shall assume such obligations by supplemental indenture
executed and delivered to the Trustee in accordance with the provisions of
Section 11.03. Upon execution and delivery of such supplemental indenture, such
successor entity shall succeed to and be substituted for the Subsidiary
Guarantor with the same effect as if it had been named herein as a Subsidiary
Guarantor.
Section 11.03. Addition of Subsidiary Guarantors.
(a) The Company agrees to cause each Subsidiary that shall become a
Restricted Subsidiary after the Issue Date to execute and deliver a supplemental
indenture pursuant to which such Restricted Subsidiary shall guarantee the
payment of the Securities pursuant to the terms hereof.
(b) Any Person who is not a Subsidiary Guarantor on the Issue Date may
become a Guarantor by executing and delivering to the Trustee (i) a supplemental
indenture in form and substance satisfactory to the Trustee, which subjects such
Person to the provisions (including the representations and warranties) of this
Indenture as a Subsidiary Guarantor and (ii) an Opinion of Counsel and Officers'
Certificate to the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the legal, valid, binding
and enforceable obligation of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be acceptable to
the Trustee and provided that no opinion need be rendered concerning the
enforceability of the Guarantee). Section 11.04. Release of a Subsidiary
Guarantor.
A Subsidiary Guarantor shall be deemed released from all of its
Guarantee and obligations in this Indenture upon (i) (A) the sale of the Capital
Stock or all or substantially all of the assets of such Subsidiary Guarantor, or
the
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consolidation or merger of such Subsidiary Guarantor, made in accordance
with the provisions of either Section 11.02(b)(i)(B) or Section 11.02(b)(ii) or
(B) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary,
provided that such designation is made in accordance with the provisions of this
Indenture, and (ii) receipt of a request by the Company accompanied by an
Officers' Certificate and an Opinion of Counsel certifying that all conditions
specified in this Indenture for such release have been satisfied in accordance
with the provisions of this Indenture. Upon receipt of the items specified in
clause (ii) of the preceding sentence, the Trustee shall deliver to the Company
an appropriate instrument evidencing such release. Any Subsidiary Guarantor not
so released remains liable for the full amount of principal of and interest on
the Securities as provided in this Article Eleven.
Section 11.05. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance hereof each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of any federal, state or foreign
law. To effectuate the foregoing intention. the Holders and each Subsidiary
Guarantor hereby irrevocably agree that the obligations of each Subsidiary
Guarantor under the Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Subsidiary Guarantor and after giving effect to any collections from or payments
made by or on behalf of any other Subsidiary Guarantor in respect of the
obligations of such other Subsidiary Guarantor under its Guarantee or pursuant
to Section 11.06, result in the obligations of such Subsidiary Guarantor under
the Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal, state or foreign law.
Section 11.06. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Guarantee, such Funding Guarantor shall be
entitled to a contribution from each other Subsidiary Guarantor in a pro rata
amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including
the Funding Guarantor) for all payments, damages and expenses incurred by the
Funding Guarantor in discharging the Company's obligations with respect to the
Securities or any other Subsidiary Guarantor's obligations with respect to the
Guarantee.
Section 11.07. Execution and Delivery of Guarantee.
To further evidence the Guarantees set forth in Section 11.01, each
Subsidiary Guarantor hereby agrees that a notation relating to such Guarantee,
in substantially the form of Exhibit A-1, shall be endorsed on each Security
authenticated and delivered by the Trustee and executed by either manual or
facsimile signature of two Officers of each Subsidiary Guarantor.
Each of the Subsidiary Guarantors hereby agrees that its Guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation relating to such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Security no longer holds that office at the time the Trustee authenticates such
security or at any time thereafter, such Subsidiary Guarantor's Guarantee of
such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Subsidiary Guarantor.
Section 11.08. Severability.
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In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, that portion of such provision that is not invalid, illegal or
unenforceable shall remain in effect, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 11.09. Consent to Jurisdiction and Service of Process.
Each Subsidiary Guarantor that is not organized under the laws of the
United States or any state thereof (each a "Non-U.S. Subsidiary Guarantor")
hereby appoints the principal office of CT Corporation System in The City of New
York which, on the date hereof, is located at 1633 Broadway, New York, New York
10019, as the authorized agent thereof (the "Authorized Agent") upon whom
process may be served in any action, suit or proceeding arising out of or based
on this Indenture or the Securities which may be instituted in the Supreme Court
of the State of New York or the United States District Court for the Southern
District of New York, in either case in The Borough of Manhattan, The City of
New York, by the Holder of any Security, and each Non-U.S. Subsidiary Guarantor
hereby waives any objection which it may now have to the laying of venue of any
such proceeding and expressly and irrevocably accepts and submits, for the
benefit of the Holders from time to time of the Securities, to the nonexclusive
jurisdiction of any such court in respect of any such action, suit or
proceeding, for itself and with respect to its properties, revenues and assets.
Such appointment shall be irrevocable unless and until the appointment of a
successor authorized agent for such purpose, and such successor's acceptance of
such appointment, shall have occurred. Each Non-U.S. Subsidiary Guarantor agrees
to take any and all actions, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Authorized Agent with
respect to any such action shall be deemed, in every respect, effective service
of process upon any such Non-U.S. Subsidiary Guarantor. Notwithstanding the
foregoing, any action against any Non-U.S. Subsidiary Guarantor arising out of
or based on any Security may also be instituted by the Holder of such Security
in any court in the jurisdiction of organization of such Non-U.S. Subsidiary
Guarantor, and such Non-U.S. Subsidiary Guarantor expressly accepts the
jurisdiction of any such court in any such action. The Company shall require the
Authorized Agent to agree in writing to accept the foregoing appointment as
agent for service of process.
Section 11.10. Waiver of Immunity.
To the extent that any Non-U.S. Subsidiary Guarantor or any of its
properties, assets or revenues may have or may hereafter become entitled to, or
have attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the jurisdiction of
any court, from service of process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which proceedings may at any
time be commenced, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with this Indenture or the
Securities, such Non-U.S. Subsidiary Guarantor, to the maximum extent permitted
by law, hereby irrevocably and unconditionally waives, and agrees not to plead
or claim, any such immunity and consents to such relief and enforcement.
Section 11.11. Judgment Currency.
Each Non-U.S. Subsidiary Guarantor agrees to indemnify the Trustee and
each Holder against any loss incurred by it as a result of any judgment or order
against such Non-U.S. Subsidiary being given or made and expressed and paid In a
currency (the "Judgment Currency") other than United States dollars and as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the spot rate of exchange in The City of New
York at which the Trustee or such Holder on the date of payment of such judgment
or order is able to purchase United States dollars with the amount of the
Judgment Currency actually received by the Trustee or such Holder.
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The foregoing indemnity shall constitute a separate and independent obligation
of each Non-U.S. Subsidiary Guarantor and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "spot
rate of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, United States dollars.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEES
Section 12.01. Guarantees Subordinated to Senior Indebtedness.
Each Subsidiary Guarantor, for itself and its successors, and each
Holder, by his acceptance of Securities, agrees that the Guarantees of such
Subsidiary Guarantor are subordinated, to the extent and in the manner provided
in this Article Twelve, to the prior payment in full of all Senior Indebtedness
of such Subsidiary Guarantor (hereinafter in this Article Twelve referred to as
"Senior Indebtedness"). The Guarantees shall rank pari passu in right of payment
with all guarantees by a Subsidiary Guarantor of Pari Passu Indebtedness of the
Company.
This Article Twelve shall constitute a continuing offer to all Persons
who become holders of, or continue to hold, Senior Indebtedness, and such
provisions are made for the benefit of the holders of Senior Indebtedness, and
such holders are made obligees hereunder and any one or more of them may enforce
such provisions.
Section 12.02. No Payment on Guarantees in Certain Circumstances.
Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, unless and until all principal thereof, premium, if
any, interest thereon and other amounts due thereon shall first be paid in full,
no payment shall be made by or on behalf of any Subsidiary Guarantor pursuant to
the Guarantees with respect to the principal of, premium, if any, interest on or
other amounts owing on the Securities.
Upon the happening of any default in the payment of any principal of,
premium, if any, or interest on or other amounts due on any Senior Indebtedness
(a "Payment Default"), then, unless and until such default shall have been cured
or waived or shall have ceased to exist, no payment shall be made by or on
behalf of any Subsidiary Guarantor pursuant to the Guarantees with respect to
the principal of, premium, if any, interest on or other amounts owing on the
Securities (except that, subject to applicable law, Holders may receive
Subordinated Securities of Subsidiary Guarantors).
Upon the happening of any default or event of default (other than a
Payment Default) (including any event which with the giving of notice or the
lapse of time or both would become an event of default and including any default
or event of default which would result upon any payment pursuant to the
Guarantees) with respect to any Senior Indebtedness of a Subsidiary Guarantor,
as such default or event of default is defined therein or in the instrument or
agreement or other document under which it is outstanding, then upon written
notice thereof given to the Subsidiary Guarantors and the Trustee by a holder or
holders of any Designated Senior Indebtedness or their Representative ("Payment
Notice"), no payment shall be made by or on behalf of the Subsidiary Guarantors
pursuant to the Guarantees with respect to the principal of, premium, if any,
interest on or other amounts owing on the Securities during the period (the
"Payment Blockage Period") commencing on the date of such receipt of such
Payment Notice and ending on the earlier of (i) the date, if any, on which such
default is cured or waived or ceases to exist or (ii) the date, if any, on which
the Designated Senior Indebtedness to which such default relates is discharged;
provided, however, that no default or event of default (other than a Payment
Default) shall prevent the making of any payment pursuant to the Guarantees for
more than 179 days after the Payment Notice shall have been given.
Notwithstanding the foregoing, (i) not more than one Payment Notice shall be
given within a period of 360 consecutive days, and (ii) no event of default
which existed or was continuing on the date of any Payment Notice shall be made
the basis for the giving of a subsequent Payment Notice unless all such events
of default shall have
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been cured or waived for a period of at least 180 consecutive days after such
date, and (iii) if any Subsidiary Guarantor or the Trustee receives any Payment
Notice, a similar notice relating to or arising out of the same default or facts
giving rise to such default (whether or not such default is on the same issue of
Designated Senior Indebtedness) shall not be effective for purposes of this
paragraph.
The Subsidiary Guarantors shall resume payments of principal of,
premium, if any, and interest on the Guarantees (i) in the case of a Payment
Default, upon the date such Payment Default is cured or waived by the holders of
Senior Indebtedness to which such Payment Default relates and (ii) in the case
of a default or event of default (other than a Payment Default) with respect to
Designated Senior Indebtedness, on the earlier of (A) the date such default or
event of default is cured or (B) the expiration of the Payment Blockage Period
with respect thereto if, in the case of this clause (B), this Article Twelve
otherwise does not prohibit such payment.
In furtherance of the provisions of Section 12.01, in the event that,
notwithstanding the foregoing provisions of this Section 12.02, any payment
(other than a payment in the form of Subordinated Securities of Subsidiary
Guarantors) with respect to the principal of, premium, if any or interest on the
Securities shall be made by or on behalf of any Subsidiary Guarantor, and
received by the Trustee, by any Holder or by any Paying Agent (or, if the
Company is acting as its own Paying Agent, money for any such payment shall be
segregated and held in trust), at a time when such payment was prohibited by the
provisions of this Section 12.02, then, unless and until such payment is no
longer prohibited by this Section 12.02, such payment (subject to the provisions
of Sections 12.06 and 12.07) shall be received and held in trust by the Trustee
or such Holder or Paying Agent for the benefit of and shall be immediately paid
over to the holders of Senior Indebtedness or their Representative, ratably
according to the aggregate amounts remaining unpaid on account of the principal
of, premium, if any, and interest on the Senior Indebtedness held or represented
by each, for application to the payment of all Senior Indebtedness in accordance
with its terms, after giving effect to any concurrent payment or distribution to
or for the benefit of the holders of Senior Indebtedness.
The provisions of this Section 12.02 shall not modify or limit in any
way the application of Section 12.03.
Each Subsidiary Guarantor shall give prompt written notice to the
Trustee of any default in the payment of any Senior Indebtedness of such
Subsidiary Guarantor or any acceleration under any such Senior Indebtedness or
under any agreement pursuant to which such Senior Indebtedness may have been
issued. Failure to give such notice shall not affect the subordination of the
Guarantees to the Senior Indebtedness or the application of the other provisions
provided in this Article Twelve.
Section 12.03. Guarantees Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of
a Subsidiary Guarantor.
In the event of any Insolvency or Liquidation Proceeding with respect to
any Subsidiary Guarantor, all amounts payable in respect of any Senior
Indebtedness of such Subsidiary Guarantor shall first be paid in full before the
Holders are entitled to receive any direct or indirect payment or distribution
of any cash, property or securities (other than Subordinated Securities of
Subsidiary Guarantors) pursuant to the Guarantees on account of principal of,
premium, if any, or interest on the Securities or any other payment with respect
to the Securities.
The holders of Senior Indebtedness shall be entitled to receive
directly, for application to the payment of Senior Indebtedness (to the extent
necessary to pay in full all Senior Indebtedness, whether or not due, including
specifically, without limitation, all Post-Commencement Interest, whether or not
allowed as a claim in such insolvency or Liquidation Proceeding, after giving
effect to any substantially concurrent payment or distribution to the holders of
Senior Indebtedness on account of Senior Indebtedness), any payment or
distribution of any kind or character, whether in cash, property or securities
(other than Subordinated Securities of Subsidiary Guarantors), including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other payment of any other indebtedness of such Subsidiary
Guarantor being subordinated to the payment of the
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Guarantees) which may be payable or deliverable in respect of the Guarantees in
any such Insolvency or Liquidation Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section 12.03, the Trustee or any Paying Agent or the Holder of any Security
shall have received any payment from or distribution of assets of such
Subsidiary Guarantor or the estate created by the commencement of any such
Insolvency or Liquidation Proceeding, of any kind or character in respect of the
Guarantees, whether in cash, property or securities (other than Subordinated
Securities of Subsidiary Guarantors), including any payment or distribution
which may be payable or deliverable by reason of the payment of any other
indebtedness of such Subsidiary Guarantor being subordinated to the payment of
the Guarantees, before all Senior Indebtedness (whether or not due including
specifically, without limitation, all Post-Commencement Interest, whether or not
allowed as a claim in such Insolvency or Liquidation Proceeding) is paid in
full, then and in such event such payment or distribution shall be received and
held in trust by the Trustee, any such Paying Agent or Holder for and shall be
paid over to the holders of Senior Indebtedness (to the extent necessary to pay
in full all such Senior Indebtedness, whether or not due, including
specifically, without limitation, all Post Commencement Interest thereon,
whether or not allowed as a claim in such Insolvency or Liquidation Proceeding),
after giving effect to any substantially concurrent payment or distribution to
the holders of Senior Indebtedness on account of Senior Indebtedness, for
application to the payment in full of such Senior Indebtedness.
The Company and each Subsidiary Guarantor shall give prompt written
notice to the Trustee of any Insolvency or Liquidation Proceeding with respect
to such Subsidiary Guarantor.
Section 12.04. Holders to Be Subrogated to Rights of Holders of Senior
Indebtedness.
After all amounts payable under or in respect of Senior Indebtedness
(whether or not due) are paid in full, the Holders shall be subrogated (without
any duty on the part of the holders of Senior Indebtedness to warrant, create,
effectuate, preserve or protect such subrogation), to the extent of the payments
or distributions made to the holders of Senior Indebtedness pursuant to the
provisions of this Article Twelve (equally and ratably with the holders of all
other indebtedness of any Subsidiary Guarantor which by its express terms is
subordinate and subject in right of payment to Senior Indebtedness to
substantially the same extent as the Guarantees are so subordinated and subject
in right of payment and which is entitled to like rights and subrogation), to
the rights of the holders of Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness, until the principal of and interest on the Securities shall be
paid in full. For the purpose of such subrogation no such payments or
distributions to the holders of Senior Indebtedness by or on behalf of the
Company, or by or on behalf of the Holders by virtue of this Article Twelve,
which otherwise would have been made to the Holders shall, as between any
Subsidiary Guarantor and the Holders, be deemed to be payment by such Subsidiary
Guarantor to or on account of the Senior Indebtedness, it being understood that
the provisions of this Article Twelve are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Indebtedness, on the other hand.
Section 12.05. Guarantees Unconditional.
Except as otherwise provided herein, nothing contained in this
Indenture or in any Guarantee is intended to or shall impair, as between the
Subsidiary Guarantors and the Holders, the Guarantees, which are absolute and
unconditional, as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Subsidiary Guarantors, other than the holders of
the Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article Twelve, of the holders of Senior Indebtedness in respect of
cash, property or securities of any Subsidiary Guarantor received upon the
exercise of any such remedy. Upon any distribution of assets of any Subsidiary
Guarantor referred to in this Article Twelve, the Trustee, subject to the
provisions of Section 7.01, and the Holders
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shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such Insolvency or Liquidation Proceedings is
pending, or a certificate of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of such Subsidiary
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Twelve.
Section 12.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until the Trustee or any Paying Agent shall have received
written notice at the address specified in Section 13.02 thereof from the
Company or a Subsidiary Guarantor or from one or more holders of Senior
Indebtedness or from any Representative therefor and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 7.01,
shall be entitled in all respects conclusively to assume that no such fact
exits. Nothing in this Section 12.06 is intended to or shall relieve any Holder
from the obligations imposed under Sections 12.02 and 12.03 with respect to
money or other distributions received in violation of the provisions thereof.
Section 12.07. Application by Trustee of Assets Deposited With It.
All money and U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Section 8.01 shall be for the sole
benefit of the Holder and shall not be subject to this Article Twelve.
Otherwise, any deposit of assets by any Subsidiary Guarantor pursuant to the
Guarantees with the Trustee or any Paying Agent (whether or not in trust) for
the payment of principal of or interest on any Securities shall be subject to
the provisions of this Article Twelve; provided that, if prior to the second
Business Day preceding the date on which by the terms of this Indenture any such
assets may become distributable for any purpose (including without limitation,
the payment of either principal of or interest on any Security) the Trustee or
such Paying Agent shall not have received with respect to such assets the
written notice provided for in Section 12.06, then the Trustee or such Paying
Agent shall have full power and authority to receive such assets and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such date.
The preceding sentence shall be construed solely for the benefit of the Trustee
and each Paying Agent and shall not otherwise affect the rights of holders of
Senior Indebtedness,
Section 12.08. Subordination Rights Not Impaired by Acts or Omissions of the
Subsidiary Guarantors or Holders of Senior Indebtedness.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination provisions in this Article Twelve shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Subsidiary Guarantor or by any act or failure to act by any such holder, or
by any noncompliance by the Company with the terms of this Indenture, regardless
of any knowledge thereof which any such holder may have or be otherwise charged
with. The holders of Senior Indebtedness may extend, renew, modify or amend the
terms of the Senior Indebtedness or any security therefor and release, sell or
exchange such security and otherwise deal freely with the Subsidiary Guarantors,
all without affecting the liabilities and obligations of the parties to this
Indenture or the Holders.
Section 12.09. Holders Authorize Trustee to Effectuate Subordination of
Securities.
Each Holder of Securities by his acceptance thereof (i) authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Twelve and to protect the rights of the Holders pursuant to this
Indenture, and (ii) appoints the Trustee his attorney-in-fact for such purpose,
including in the event of any Insolvency or Liquidation Proceeding with respect
to any
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Subsidiary Guarantor, the timely filing of a claim of the unpaid balance
of his Securities pursuant to the Guarantees in the form required in said
proceeding and the causing of such claim to be approved. If the Trustee shall
not file a proper claim or proof of debt in the form required in such proceeding
prior to 30 days before the expiration of the time to file such claim or claims,
then the holders of the Senior Indebtedness or their Representative shall have
the right to file an appropriate claim for and on behalf of the Holders. Nothing
herein contained shall be deemed to authorize the Trustee or any holder of
Senior Indebtedness or their Representative to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities, the Guarantees or the rights
of any Holder, or to authorize the Trustee or any holder of Senior Indebtedness
or their Representative to vote in respect of the claim of any Holder in any
such proceeding.
Section 12.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Twelve in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Section 12.11. Payment.
A payment pursuant to the Guarantees with respect to a Security or with
respect to principal of, premium, if any, or interest on a Security shall
include, without limitation, payment of principal of, premium, if any, and
interest on any Security, any depositing of funds under Article Four, any
payment on account of any mandatory or optional repurchase or redemption of any
Security (including payments pursuant to Article Three or Section 4.10 or
Section 4.16) and any payment or recovery on any claim (whether for rescission
or damages and whether based on contract, tort, duty imposed by law, or any
other theory of liability) relating to or arising out of the offer, sale or
purchase of any Security, provided that any such payment, deposit, other payment
or recovery (i) not prohibited pursuant to this Article Twelve at the time
actually made shall not be subject to any recovery by any holder of Senior
Indebtedness or Representative therefor or other Person pursuant to this Article
Twelve at any time thereafter and (ii) made by or from any Persons other than
any Subsidiary Guarantor shall not be subject to any recovery by any holder of
Senior Indebtedness or Representative therefor or other Person pursuant to this
Article Twelve at any time thereafter except to the extent such Person recovers
any such amount paid from such Subsidiary Guarantor, whether pursuant to rights
of indemnity, rescission or otherwise.
Section 12.12. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by operation of TIA Section 318(c), the imposed duties shall
control.
Section 13.02. Notices.
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Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by certified or registered mail (return
receipt requested), telecopier or overnight air courier guaranteeing next day
delivery, addressed as follows:
If to the Company or any Subsidiary Guarantor:
Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona 85255
Attention: Treasurer
If to the Trustee:
The Bank of New York
101 Barclay Street, 21 West
New York, NY 10286
Attention: Corporate Trust Trustee Administration
The Company or any Subsidiary Guarantor or the Trustee by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication mailed to a Holder shall be mailed to him
by first-class mail at this address as it appears on the registration books of
the Registrar and shall be sufficiently given to him if so mailed within the
time prescribed. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not the addressee receives it. If the Company or any
Subsidiary Guarantor mails notice or communications to Holders it shall mail a
copy to the Trustee and each Agent at the same time.
Section 13.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Subsidiary Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
Section 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Subsidiary
Guarantor to the Trustee to take any action under this Indenture (except with
respect to the initial issuance of the Securities), the Company or such
Subsidiary Guarantor, as the case may be, shall furnish to the Trustee:
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(1) an Officers' Certificate (which shall include the statements set
forth in Section 13.05) stating that, in the opinion of the signers, the
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, such conditions precedent have been complied with.
Section 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such covenant or condition has been complied with.
Section 13.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or for a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules for its
functions.
Section 13.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which banks and
trust companies in The City of New York are not required by law or executive
order to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at the place on the next succeeding day that is not a Legal
Holiday, without additional interest.
Section 13.08. Governing Law.
THIS INDENTURE AND THE SECURITIES AND THE GUARANTEES 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 TO THE EXTENT THAT
THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 13.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company, any Subsidiary Guarantor or any other Subsidiary.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
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Section 13.10. No Recourse Against Others.
All liability described in paragraph 18 of the Securities of any director,
officer, employee or stockholder, as such, of the Company, the Subsidiary
Guarantors or the Trustee is waived and released.
Section 13.11. Successors.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
Section 13.12. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
instrument.
Section 13.13. Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
GIANT INDUSTRIES, INC.
By: /s/ A. Wayne Davenport
-------------------------------
Name: A. Wayne Davenport
Title: Vice President
THE BANK OF NEW YORK, as Trustee
By: /s/ Walter N. Gitlin
-------------------------------
Name: Walter N. Gitlin
Title: Vice President
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SUBSIDIARY GUARANTORS
Giant Industries Arizona, Inc.,
an Arizona corporation
By: /s/ A. Wayne Davenport
-------------------------------
Name: A. Wayne Davenport
Title: Vice President
Giant Exploration & Production Company,
a Texas corporation
By: /s/ A. Wayne Davenport
-------------------------------
Name: A. Wayne Davenport
Title: Vice President
Ciniza Production Company,
a New Mexico corporation
By: /s/ A. Wayne Davenport
-------------------------------
Name: A. Wayne Davenport
Title: Vice President
Giant Stop-N-Go of New Mexico, Inc.,
a New Mexico corporation
By: /s/ A. Wayne Davenport
-------------------------------
Name: A. Wayne Davenport
Title: Vice President
Giant Four Corners, Inc.,
an Arizona corporation
By: /s/ A. Wayne Davenport
-------------------------------
Name: A. Wayne Davenport
Title: Vice President
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Phoenix Fuel Co., Inc.
an Arizona corporation
By: /s/ A. Wayne Davenport
-------------------------------
Name: A. Wayne Davenport
Title: Vice President
San Juan Refining Company,
a New Mexico corporation
By: /s/ A. Wayne Davenport
-------------------------------
Name: A. Wayne Davenport
Title: Vice President
Giant Mid-Continent, Inc.,
an Arizona corporation
By: /s/ A. Wayne Davenport
-------------------------------
Name: A. Wayne Davenport
Title: Vice President
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EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
GIANT INDUSTRIES, INC.
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND UNDER APPLICABLE STATE
SECURITIES LAWS, AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER
OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (i) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (ii) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (iii)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (iv) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (i) THROUGH (iv) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM
IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
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["IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.]"
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9% SENIOR SUBORDINATED NOTE DUE 2007
No._______________ $__________________
CUSIP No. 374508 AB 5
Giant Industries, Inc., a Delaware corporation, promises to pay to
__________________________________ or registered assigns the principal sum of
__________________________________________ Dollars on , 2007.
Interest Payment Dates: and
Record Dates: and
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
In Witness Whereof, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
[Seal] GIANT INDUSTRIES, INC.
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Dated:___________________
Certificate of Authentication:
The Bank of New York,
as Trustee, certifies that this is one of
the Securities referred to in the within-
mentioned Indenture.
By:_____________________________________
Authorized Signatory
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[REVERSE OF SECURITY]
GIANT INDUSTRIES, INC.
9% SENIOR SUBORDINATED NOTE DUE 2007
1. Interest. Giant Industries, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
9% per annum from __________, 1997 until maturity; provided, however, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
interest will accrue on this security at a rate of __% per annum from and
including the date on which any such Registration Default shall occur to but
excluding the date on which all Registration Defaults have been cured. The
Company will pay interest semiannually on ________________ and ____________ of
each year (each an "Interest Payment Date"), or if any such day is not a
Business Day, on the next succeeding Business Day. Interest on the Securities
will accrue from the most recent Interest Payment Date on which interest has
been paid or, if no interest has been paid, from _____________, 1997; provided,
that if there is no existing Default in the payment of interest, and if this
Security is authenticated between a record date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be ____________, 1998. The Company shall pay
interest on overdue principal and premium, if any, from time to time on demand
at a rate equal to the interest rate then in effect; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Company will pay interest on the Securities to
the persons who are registered holders of Securities at the close of business on
the record date immediately preceding the Interest Payment Date, even if such
Securities are cancelled after the record date and on or before the Interest
Payment Date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal of, premium, if any, and
interest on the Securities in money of the United States of America that at the
time of payment is legal tender for payment of public and private debts.
However, the Company may pay such amounts by check payable in such money. It may
mail an interest check to a Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
4. Indenture. The Company issued the Securities under an Indenture, dated
as of ___________, 1997 (the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbb) as in
effect on the date of the Indenture. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms. The Securities are
limited to $150,000,000 aggregate principal amount.
5. Ranking and Guarantees. The Securities are general senior subordinated
unsecured obligations of the Company. The Company's obligation to pay principal,
premium, if any, and interest with respect to the Securities is unconditionally
guaranteed on a senior subordinated basis, jointly and severally, by the
Subsidiary Guarantors pursuant to Article Eleven of the Indenture. Certain
limitations to the obligations of the Subsidiary Guarantors are set forth in
further detail in the Indenture.
6. Optional Redemption. At any time on or after _______, 2002, the Company
may, at its option, redeem all or any portion of the Securities at the
redemption prices (expressed as percentages of the principal
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amount of the Securities) set forth below, plus, in each case, accrued interest
thereon to the applicable redemption date, if redeemed during the 12-month
period beginning of the years indicated below:
Year Percentage
---- ----------
2002 %
2003 %
2004 %
2005 and thereafter 100.00%
In addition, at any time and from time to time on or prior to September 1,
2002, the Company may redeem in the aggregate up to 35% of the aggregate
principal amount of the Notes originally issued with the proceeds of one or more
Public Equity Offerings, at a redemption price (expressed as a percentage of
principal amount) of ____%, plus accrued and unpaid interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that at least 65% of the aggregate initial principal amount
of the Notes must remain outstanding after each such redemption. In order to
effect the foregoing redemption, the Company must mail notice of redemption in
accordance with the terms of the Indenture no later than 60 days after the
related Public Equity Offering and must consummate such redemption within 90
days of the closing of the Public Equity Offering.
7. Notice of Redemption. Notice of redemption will be mailed to the
Holder's registered address at least 30 days but not more than 60 days before
the redemption date to each Holder of Securities to be redeemed. If less than
all Securities are to be redeemed, the Trustee shall select pro rata or by lot
the Securities to be redeemed in multiples of $1,000. Securities in
denominations larger than $1,000 may be redeemed in part. On and after the
redemption date interest ceases to accrue on Securities or portions of them
called for redemption (unless the Company shall default in the payment of the
redemption price or accrued interest).
8. Change of Control. In the event of a Change of Control of the Company,
the Company shall be required to make an offer to purchase pro rata or by lot
all or any portion of each Holder's Securities, at 101% of the principal amount
thereof, plus accrued interest to the Change of Control Payment Date.
9. Net Proceeds Offer. In the event of certain Asset Sales, the Company
may be required to make a Net Proceeds Offer to purchase pro rata or by lot all
or any portion of each Holder's Securities, at 100% of the principal amount of
the Securities plus accrued interest to the Net Proceeds Payment Date.
10. Restrictive Covenants. The Indenture imposes certain limitations on,
among other things, the ability of the Company to merge or consolidate with any
other Person or sell, lease or otherwise transfer all or substantially all of
its properties or assets, and the ability of the Company and its Restricted
Subsidiaries to dispose of certain assets, to pay dividends and make certain
other distributions and payments, to make certain investments or redeem, retire,
repurchase or acquire for value shares of Capital Stock, to incur additional
Indebtedness or incur encumbrances against certain property and to enter into
certain transactions with Affiliates, all subject to certain limitations
described in the Indenture.
11. Denominations, Transfer, Exchange. The Securities are in registered
form without coupons in denominations of $1,000 (or, in the case of Securities
sold to institutional "accredited investors" as described in Rule 501(a) (1),
(2), (3) or (7) under the Securities Act in a transaction intended to be exempt
from registration under the Securities Act, minimum denominations of $500,000)
and whole multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not transfer or exchange any Securities selected for redemption.
A-5
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Also, it need not transfer or exchange any Securities for a period of 15 days
before the mailing of a notice of redemption of Securities to be redeemed.
12. Persons Deemed Owners. The registered Holder of a Security may
be treated as the owner of it for all purposes and neither the Company, any
Subsidiary Guarantor, the Trustee nor any Agent shall be affected by notice
to the contrary.
13. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for one year, the Trustee or Paying Agent will pay the money
back to the Company at its written request. After that, all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
14. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Securities, and
any past default or noncompliance with any provision may be waived with the
consent of the Holders of a majority in principal amount of the Securities.
Without the consent of any Holder, the Company may amend or supplement the
Indenture or the Securities to, among other things, cure any ambiguity, defect
or inconsistency or to provide for uncertificated Securities in addition to
certificated Securities or to make any change that does not adversely affect the
rights of any Holder.
15. Successor Corporation. When a successor corporation assumes all the
obligations of its predecessor under the Securities and the Indenture, the
predecessor corporation will be released from those obligations.
16. Defaults and Remedies. An event of default generally is: default by
the Company or any Subsidiary Guarantor for 30 days in payment of interest on
the Securities; default by the Company or any Subsidiary Guarantor in payment of
principal of or premium, if any, on the Securities; default by the Company or
any Subsidiary Guarantor in the deposit of any optional redemption payment when
due and payable; defaults resulting in acceleration prior to maturity of certain
other Indebtedness; failure by the Company or any Subsidiary Guarantor for 60
days after notice to comply with any of its other agreements in the Indenture;
certain final judgments against the Company or Subsidiaries; a failure of any
Guarantee of a Subsidiary Guarantor to be in full force and effect or denial by
any Subsidiary Guarantor of its obligations with respect thereto; and certain
events of bankruptcy or insolvency. Subject to certain limitations in the
Indenture, if an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Securities
may declare all the Securities to be due and payable immediately, except that in
the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization relating to the Company, all outstanding Securities
shall become due and payable immediately without further action or notice.
Holders may not enforce the Indenture or the Securities except as provided in
the Indenture. The Trustee may require indemnity and security satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the Securities may
direct the Trustee in its exercise of any trust or power. The Company must
furnish an annual compliance certificate to the Trustee.
17. Trustee Dealings with Company and Subsidiary Guarantors. The Bank of
New York, the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, the Subsidiary Guarantors or their respective Subsidiaries or
Affiliates with the same rights it would have if it were not Trustee.
18. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company, any Subsidiary Guarantor or the Trustee,
shall not have any liability for any obligations of the Company, any Subsidiary
Guarantor or the Trustee, under the Securities or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the
Securities.
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19. Authentication. This Security shall not be valid until the
Trustee or an authenticating agent signs the certificate of authentication on
the other side of this Security.
20. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Securities as a convenience to Holders of the
Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflicts of law principles.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Giant Industries, Inc.,
23733 North Scottsdale Road, Scottsdale, Arizona 85255, Attention:
Treasurer.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint____________________________ as agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
________________________________________________________________________________
Your Signature:________________________________________________________________
(Sign exactly as your name appears on the other side of this
Security)
Your Name:_____________________________________________________________________
Date:__________________________
Signature Guarantee:___________________________________________________________
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CERTIFICATE OR TRANSFER (TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES)
This certificate relates to $_________ principal amount of Securities held in
(check applicable space)______ book-entry or_______ definitive form by the
undersigned.
The undersigned (check one box below):
/ / has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Note held by the Depository a Security
or Securities in definitive, registered form of authorized denominations
and an aggregate principal amount equal to its beneficial interest in such
Global Note (or the portion thereof indicated above); or
/ / has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
The undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
(1) / / acquired for the undersigned's own account, without
Transfer (in satisfaction of Section 2.06(a)(ii)(A) of the
Indenture); or
(2) / / transferred pursuant to and in compliance with Rule
144A under the Securities Act of 1933, as amended; or
(3) / / transferred pursuant to and in compliance with Rule
904 under the Securities Act of 1933, as amended; or
(4) / / transferred pursuant to and in compliance with Rule
144 under the Securities Act of 1933, as amended; or
(5) / / transferred pursuant to an effective registration
statement under the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered holder thereof, provided, however, that (i) if box (3) is
checked, the Company and the Trustee will require the delivery of the
certification set forth as Annex A to this Security and such other evidence
(which may include an opinion of counsel) reasonably satisfactory to them as to
the compliance with Rule 904 under the Securities Act and (ii) if box (2) or (4)
is checked, the Company or the Trustee may require evidence reasonably
satisfactory to them as to the compliance with the restrictions set forth in the
legend on the face of this Security.
__________________________________________
Signature
Signature Guarantee: __________________________________________
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ANNEX A
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
__________________,______
The Bank of New York
Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
In connection with our proposed sale of certain ____% Senior Subordinated
Notes due 2007 (the "Securities") of Giant Industries, Inc., a Delaware
corporation (the "Company"), we represent that:
(i) the offer of the Securities was not made to a person in the
United States;
(ii) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(iii) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S under the U.S. Securities Act of 1933, as applicable; and
(iv) the transaction is not part of a plan or scheme to evade
the registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S under the U.S. Securities Act of 1933.
Very truly yours,
__________________________________________
[Name]
By:_______________________________________
Name:
Title:
Address:
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FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.11, or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.11 [ ] Section 4.16 [ ]
If you want to have only part of this Security purchased by the Company
pursuant to Section 4.11, or Section 4.16 of the Indenture, state the amount (in
integral multiples of $ 1,000):
$_________________________
Date:_____________________ Signature:____________________________________
(Sign exactly as your name appears on the
other side of this Security)
Name:__________________________________________________________________________
Signature Guarantee:___________________________________________________________
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FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture), jointly and
severally, have unconditionally guaranteed the due and punctual payment of the
principal of, premium, if any, and interest on the Securities, and all other
amounts due and payable under the Indenture and the Securities by the Company,
whether at maturity, acceleration, redemption, repurchase or otherwise,
including, without limitation, the due and punctual payment of interest on the
overdue principal of, premium, if any, and interest on the Securities, to the
extent lawful.
The obligations of the Subsidiary Guarantors pursuant to the Guarantee are
subject to the terms and limitations set forth in Articles Eleven and Twelve of
the Indenture, and reference is made thereto for the precise terms of the
Guarantee.
SUBSIDIARY GUARANTORS
Giant Industries Arizona, Inc.,
an Arizona corporation
Attest:________________________ By:______________________________________
Name:
Title:
Giant Exploration & Production
Company, a Texas corporation
Attest:________________________ By:______________________________________
Name:
Title:
Ciniza Production Company,
a New Mexico corporation
Attest:________________________ By:______________________________________
Name:
Title:
Giant Stop-N-Go of New Mexico, Inc.,
a New Mexico corporation
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Attest:_________________________ By:______________________________________
Name:
Title:
Giant Four Corners, Inc.,
an Arizona corporation
Attest:_________________________ By:______________________________________
Name:
Title:
Phoenix Fuel Co., Inc.
an Arizona corporation
Attest:_________________________ By:______________________________________
Name:
Title:
San Juan Refining Company,
a New Mexico corporation
Attest:_________________________ By:______________________________________
Name:
Title:
Giant Mid-Continent, Inc.
an Arizona corporation
Attest:_________________________ By:______________________________________
Name:
Title:
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
======================================================================================
DATE OF EXCHANGE AMOUNT OF AMOUNT OF PRINCIPAL SIGNATURE OF
DECREASE IN INCREASE IN AMOUNT OF THIS AUTHORIZED
PRINCIPAL PRINCIPAL GLOBAL NOTE SIGNATORY OF
AMOUNT OF THIS AMOUNT OF FOLLOWING SUCH TRUSTEE OR
GLOBAL NOTE THIS GLOBAL DECREASE OR NOTES
NOTE INCREASE CUSTODIAN
======================================================================================
======================================================================================
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EXHIBIT B
*[FORM OF FACE OF EXCHANGE NOTE AND
**AND PRIVATE EXCHANGE NOTE]
9% SENIOR SUBORDINATED NOTE DUE 2007
No._________________ $__________________
CUSIP No. 374508 AB 5
Giant Industries, Inc., a Delaware corporation, promises to pay to
___________________________________ or registered assigns the principal sum of
__________________________ Dollars on , 2007.
Interest Payment Dates: and
Record Dates: and
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
In Witness Whereof, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
[Seal] GIANT INDUSTRIES, INC.
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Dated:_________________________
Certificate of Authentication:
The Bank of New York, as Trustee,
certifies that this is one of the Securities
referred to in the within-mentioned Indenture.
By:_______________________________________
___________
* If the Note is to be issued in global form, add the Global Notes Legend
from Exhibit A and the attachment to Exhibit A captioned "[TO BE ATTACHED TO
GLOBAL NOTES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE."
** If the Note is a Private Exchange Note issued in a Private Exchange to
the Initial Purchasers holding an unsold portion of its initial allotment, add
the restricted securities legend from Exhibit A and include the "Certificate of
Transfer (To be Delivered upon Exchange or Registration of Transfer of
Restricted Notes)" from Exhibit A.
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Authorized Signatory
[REVERSE OF SECURITY]
GIANT INDUSTRIES, INC.
9% SENIOR SUBORDINATED NOTE DUE 2007
1. Interest. Giant Industries, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
9% per annum from _______ , 1997 until maturity. The Company will pay interest
semiannually on ______________ and ______________ of each year (each an
"Interest Payment Date"), or if any such day is not a Business Day, on the next
succeeding Business Day. Interest on the Securities will accrue from the most
recent Interest Payment Date on which interest has been paid or, if no interest
has been paid, from , 1997; provided, that if there is no existing Default in
the payment of interest, and if this Security is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be
________________ , 1998. The Company shall pay interest on overdue principal and
premium, if any, from time to time on demand at a rate equal to the interest
rate then in effect; it shall pay interest on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Securities to
the persons who are registered holders of Securities at the close of business on
the record date immediately preceding the Interest Payment Date, even if such
Securities are cancelled after the record date and on or before the Interest
Payment Date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal of, premium, if any, and
interest on the Securities in money of the United States of America that at the
time of payment is legal tender for payment of public and private debts.
However, the Company may pay such amounts by check payable in such money. It may
mail an interest check to a Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
4. Indenture. The Company issued the Securities under an Indenture, dated
as of __________________, 1997 (the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbb) as in effect on the date of the Indenture. Notwithstanding anything
to the contrary herein, the Securities are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. The Securities are limited to $150,000,000 aggregate principal amount.
5. Ranking and Guarantees. The Securities are general senior subordinated
unsecured obligations of the Company. The Company's obligation to pay principal,
premium, if any, and interest with respect to the Securities is unconditionally
guaranteed on a senior subordinated basis, jointly and severally, by the
Subsidiary Guarantors pursuant to Article Eleven of the Indenture. Certain
limitations to the obligations of the Subsidiary Guarantors are set forth in
further detail in the Indenture.
6. Optional Redemption. At any time on or after __________ , 2002, the
Company may, at its option, redeem all or any portion of the Securities at the
redemption prices (expressed as percentages of the principal amount of the
Securities) set forth below, plus, in each case, accrued interest thereon to the
applicable redemption date, if redeemed during the 12-month period beginning
_____________ of the years indicated below:
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Year Percentage
---- -----------
2002 %
2003 %
2004 %
2005 and thereafter 100.00%
In addition, at any time and from time to time on or prior to September 1,
2002, the Company may redeem in the aggregate up to 35% of the aggregate
principal amount of the Notes originally issued with the proceeds of one or more
Public Equity Offerings, at a redemption price (expressed as a percentage of
principal amount) of ____%, plus accrued and unpaid interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that at least 65% of the aggregate initial principal amount
of the Notes must remain outstanding after each such redemption. In order to
effect the foregoing redemption, the Company must mail notice of redemption in
accordance with the terms of the Indenture no later than 60 days after the
related Public Equity Offering and must consummate such redemption within 90
days of the closing of the Public Equity Offering.
7. Notice of Redemption. Notice of redemption will be mailed to the
Holder's registered address at least 30 days but not more than 60 days before
the redemption date to each Holder of Securities to be redeemed. If less than
all Securities are to be redeemed, the Trustee shall select pro rata or by lot
the Securities to be redeemed in multiples of $1,000. Securities in
denominations larger than $1,000 may be redeemed in part. On and after the
redemption date interest ceases to accrue on Securities or portions of them
called for redemption (unless the Company shall default in the payment of the
redemption price or accrued interest).
8. Change of Control. In the event of a Change of Control of the Company,
the Company shall be required to make an offer to purchase pro rata or by lot
all or any portion of each Holder's Securities, at 101% of the principal amount
thereof, plus accrued interest to the Change of Control Payment Date.
9. Net Proceeds Offer. In the event of certain Asset Sales, the Company
may be required to make a Net Proceeds Offer to purchase pro rata or by lot all
or any portion of each Holder's Securities, at 100% of the principal amount of
the Securities plus accrued interest to the Net Proceeds Payment Date.
10. Restrictive Covenants. The Indenture imposes certain limitations on,
among other things, the ability of the Company to merge or consolidate with any
other Person or sell, lease or otherwise transfer all or substantially all of
its properties or assets, and the ability of the Company and its Restricted
Subsidiaries to dispose of certain assets, to pay dividends and make certain
other distributions and payments, to make certain investments or redeem, retire,
repurchase or acquire for value shares of Capital Stock, to incur additional
Indebtedness or incur encumbrances against certain property and to enter into
certain transactions with Affiliates, all subject to certain limitations
described in the Indenture.
11. Denominations, Transfer, Exchange. The Securities are in registered
form without coupons in denominations of $1,000 (or, in the case of Securities
sold to institutional "accredited investors" as described in Rule 501(a) (1),
(2), (3) or (7) under the Securities Act in a transaction intended to be exempt
from registration under the Securities Act, minimum denominations of $500,000)
and whole multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not transfer or exchange any Securities selected for redemption.
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Also, it need not transfer or exchange any Securities for a period of 15 days
before the mailing of a notice of redemption of Securities to be redeemed.
12. Persons Deemed Owners. The registered Holder of a Security may be
treated as the owner of it for all purposes and neither the Company, any
Subsidiary Guarantor, the Trustee nor any Agent shall be affected by notice to
the contrary.
13. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for one year, the Trustee or Paying Agent will pay the money
back to the Company at its request. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
14. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Securities, and
any past default or noncompliance with any provision may be waived with the
consent of the Holders of a majority in principal amount of the Securities.
Without the consent of any Holder, the Company may amend or supplement the
Indenture or the Securities to, among other things, cure any ambiguity, defect
or inconsistency or to provide for uncertificated Securities in addition to
certificated Securities or to make any change that does not adversely affect the
rights of any Holder.
15. Successor Corporation. When a successor corporation assumes all the
obligations of its predecessor under the Securities and the Indenture, the
predecessor corporation will be released from those obligations.
16. Defaults and Remedies. An event of default generally is: default by
the Company or any Subsidiary Guarantor for 30 days in payment of interest on
the Securities; default by the Company or any Subsidiary Guarantor in payment of
principal of or premium, if any, on the Securities; default by the Company or
any Subsidiary Guarantor in the deposit of any optional redemption payment when
due and payable; defaults resulting in acceleration prior to maturity of certain
other Indebtedness; failure by the Company or any Subsidiary Guarantor for 60
days after notice to comply with any of its other agreements in the Indenture;
certain final judgments against the Company or Subsidiaries; a failure of any
Guarantee of a Subsidiary Guarantor to be in full force and effect or denial by
any Subsidiary Guarantor of its obligations with respect thereto; and certain
events of bankruptcy or insolvency. Subject to certain limitations in the
Indenture, if an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Securities
may declare all the Securities to be due and payable immediately, except that in
the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization relating to the Company, all outstanding Securities
shall become due and payable immediately without further action or notice.
Holders may not enforce the Indenture or the Securities except as provided in
the Indenture. The Trustee may require indemnity and security satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the Securities may
direct the Trustee in its exercise of any trust or power. The Company must
furnish an annual compliance certificate to the Trustee.
17. Trustee Dealings with Company and Subsidiary Guarantors. The Bank of
New York, the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, the Subsidiary Guarantors or their respective Subsidiaries or
Affiliates with the same rights it would have if it were not Trustee.
18. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company, any Subsidiary Guarantor or the Trustee,
shall not have any liability for any obligations of the Company, any Subsidiary
Guarantor or the Trustee, under the Securities or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the
Securities.
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19. Authentication. This Security shall not be valid until the
Trustee or an authenticating agent signs the certificate of authentication on
the other side of this Security.
20. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Securities as a convenience to Holders of the
Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflicts of law principles.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Giant Industries, Inc.,
23733 North Scottsdale Road, Scottsdale, Arizona 85255, Attention:
Treasurer.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________ as agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the other side of this
Security)
Your Name:______________________________________________________________________
Date:____________________
Signature Guarantee:____________________________________________________________
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FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.11, or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.11 [ ] Section 4.16 [ ]
If you want to have only part of this Security purchased by the Company
pursuant to Section 4.11, or Section 4.16 of the Indenture, state the amount (in
integral multiples of $ 1,000):
$_______________________
Date:___________________ Signature:_______________________________
(Sign exactly as your name appears on the other side of this Security)
Name:___________________________________________________________________________
Signature Guarantee:____________________________________________________________
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FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture), jointly and
severally, have unconditionally guaranteed the due and punctual payment of the
principal of, premium, if any, and interest on the Securities, and all other
amounts due and payable under the Indenture and the Securities by the Company,
whether at maturity, acceleration, redemption, repurchase or otherwise,
including, without limitation, the due and punctual payment of interest on the
overdue principal of, premium, if any, and interest on the Securities, to the
extent lawful.
The obligations of the Subsidiary Guarantors pursuant to the Guarantee are
subject to the terms and limitations set forth in Articles Eleven and Twelve of
the Indenture, and reference is made thereto for the precise terms of the
Guarantee.
SUBSIDIARY GUARANTORS
Giant Industries Arizona, Inc.,
an Arizona corporation
Attest:_______________________ By:_____________________________________
Name:
Title:
Giant Exploration & Production
Company, a Texas corporation
Attest:_______________________ By:_____________________________________
Name:
Title:
Ciniza Production Company,
a New Mexico corporation
Attest:________________________ By:_____________________________________
Name:
Title:
Giant Stop-N-Go of New Mexico, Inc.,
a New Mexico corporation
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Attest:________________________ By:_____________________________________
Name:
Title:
Giant Four Corners, Inc.,
an Arizona corporation
Attest:_________________________ By:_____________________________________
Name:
Title:
Ciniza Production Company,
a New Mexico corporation
Attest:__________________________ By:_____________________________________
Name:
Title:
Giant Stop-N-Go of New Mexico, Inc.,
a New Mexico corporation
Attest:_________________________ By:_____________________________________
Name:
Title:
Giant Four Corners, Inc.,
an Arizona corporation
Attest:_________________________ By:_____________________________________
Name:
Title:
Phoenix Fuel Co., Inc.
an Arizona corporation
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Attest:_________________________ By:_____________________________________
Name:
Title:
San Juan Refining Company,
a New Mexico corporation
Attest:_________________________ By:_____________________________________
Name:
Title:
Giant Mid-Continent, Inc.
an Arizona corporation
Attest:__________________________ By:_____________________________________
Name:
Title:
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