EXHIBIT 4.1
EXECUTION COPY
PETRO STOPPING CENTERS HOLDINGS, ▇.▇.
▇▇▇▇▇ HOLDINGS FINANCIAL CORPORATION
as Issuers,
and
STATE STREET BANK AND TRUST COMPANY
as Trustee
____________________
INDENTURE
Dated as of July 23, 1999
____________________
15% Senior Discount Notes due 2008
_________________________________________
TABLE OF CONTENTS
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Section Page
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE.................................................. 1
Section 1.1. Definitions.............................................................................. 1
Section 1.2. Other Definitions........................................................................ 30
Section 1.3. Incorporation by Reference of Trust Indenture Act........................................ 30
Section 1.4. Rules of Construction.................................................................... 30
ARTICLE II. THE NOTES.................................................................................. 31
Section 2.1. Form and Dating.......................................................................... 31
Section 2.2. Execution and Authentication............................................................. 32
Section 2.3. Registrar and Paying Agent............................................................... 33
Section 2.4. Paying Agent to Hold Money in Trust...................................................... 34
Section 2.5. Holder Lists............................................................................. 34
Section 2.6. Global Note Provisions................................................................... 34
Section 2.7 Legends.................................................................................. 35
Section 2.8. Transfer and Exchange.................................................................... 35
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes............................................... 43
Section 2.10. Temporary Notes.......................................................................... 44
Section 2.11. Cancellation............................................................................. 44
Section 2.12. Defaulted Interest....................................................................... 44
Section 2.13. Add-On Notes............................................................................. 45
Section 2.14. Additional Amounts Under Registration Rights Agreements.................................. 46
ARTICLE III. REDEMPTION................................................................................. 46
Section 3.1. Notices to Trustee....................................................................... 46
Section 3.2. Selection by Trustee of Notes to Be Redeemed............................................. 46
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Section 3.3. Notice of Redemption...................................................................... 46
Section 3.4. Effect of Notice of Redemption............................................................ 47
Section 3.5. Deposit of Redemption Price............................................................... 48
Section 3.6. Notes Redeemed in Part.................................................................... 48
Section 3.7. Optional Redemption....................................................................... 48
ARTICLE IV. COVENANTS................................................................................... 49
Section 4.1. Payment of Notes.......................................................................... 49
Section 4.2. SEC Reports............................................................................... 49
Section 4.3. Waiver of Stay, Extension or Usury Laws................................................... 50
Section 4.4. Compliance Certificate.................................................................... 50
Section 4.5. Taxes..................................................................................... 51
Section 4.6. Limitation on Debt........................................................................ 51
Section 4.7. Limitation on Issuance and Sale of Capital Interests in Restricted Subsidiaries........... 52
Section 4.8. Limitation on Restricted Payments......................................................... 52
Section 4.9. Limitation on Asset Sales................................................................. 55
Section 4.10. Limitation on Transactions with Affiliates................................................ 57
Section 4.11. Limitations on Liens...................................................................... 58
Section 4.12. [INTENTIONALLY OMITTED]................................................................... 58
Section 4.13. Limitation on Creation of Unrestricted Subsidiaries....................................... 58
Section 4.14. [INTENTIONALLY OMITTED]................................................................... 59
Section 4.15. Limitation on Sale and Leaseback Transactions............................................. 59
Section 4.16. Payments for Consent...................................................................... 60
Section 4.17. Limitation on Conduct of Business of PFC.................................................. 60
Section 4.18. Change of Control......................................................................... 60
Section 4.19. Maintenance of Office or Agency........................................................... 61
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Section 4.20. Maintenance of Properties and Insurance................................................... 62
ARTICLE V. SUCCESSOR CORPORATION........................................................................ 62
Section 5.1. Limitation on Merger, Conveyance, Transfer and Lease...................................... 62
Section 5.2. Successor Person Substituted.............................................................. 64
ARTICLE VI. DEFAULTS AND REMEDIES....................................................................... 65
Section 6.1. Events of Default......................................................................... 65
Section 6.2. Acceleration.............................................................................. 67
Section 6.3. Other Remedies............................................................................ 67
Section 6.4. Waiver of Past Defaults and Events of Default............................................. 68
Section 6.5. Control by Majority....................................................................... 68
Section 6.6. Limitation on Suits....................................................................... 68
Section 6.7. Rights of Holders To Receive Payment...................................................... 68
Section 6.8. Collection Suit by Trustee................................................................ 69
Section 6.9. Trustee May File Proofs of Claim.......................................................... 69
Section 6.10. Priorities................................................................................ 69
Section 6.11. Undertaking for Costs..................................................................... 70
Section 6.12. Restoration of Rights and Remedies........................................................ 70
ARTICLE VII. TRUSTEE..................................................................................... 70
Section 7.1. Duties of Trustee......................................................................... 70
Section 7.2. Rights of Trustee......................................................................... 71
Section 7.3. Individual Rights of Trustee.............................................................. 72
Section 7.4. Trustee's Disclaimer...................................................................... 72
Section 7.5. Notice of Defaults........................................................................ 72
Section 7.6. Reports by Trustee to Holders............................................................. 73
Section 7.7. Compensation and Indemnity................................................................ 73
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Section 7.8. Replacement of Trustee.................................................................... 74
Section 7.9. Successor Trustee by Consolidation, Merger or Conversion.................................. 74
Section 7.10. Eligibility; Disqualification............................................................. 75
Section 7.11. Preferential Collection of Claims Against Issuers......................................... 75
Section 7.12. Paying Agents............................................................................. 75
ARTICLE VIII. AMENDMENT, SUPPLEMENT AND WAIVER........................................................ 75
Section 8.1. Without Consent of Holders................................................................ 75
Section 8.2. With Consent of Holders................................................................... 76
Section 8.3. Compliance with Trust Indenture Act....................................................... 77
Section 8.4. Revocation and Effect of Consents......................................................... 77
Section 8.5. Notation on or Exchange of Notes.......................................................... 78
Section 8.6. Trustee To Sign Amendments, etc........................................................... 78
ARTICLE IX. DISCHARGE OF INDENTURE; DEFEASANCE...................................................... 78
Section 9.1. Discharge of Indenture.................................................................... 78
Section 9.2. Legal Defeasance.......................................................................... 79
Section 9.3. Covenant Defeasance....................................................................... 79
Section 9.4. Conditions to Legal Defeasance or Covenant Defeasance..................................... 80
Section 9.5. Deposited Money and U.S. Government Obligations To Be Held in Trust; Other
Miscellaneous Provisions.................................................................. 81
Section 9.6. Reinstatement............................................................................. 82
Section 9.7. Moneys Held by Paying Agent............................................................... 82
Section 9.8. Moneys Held by Trustee.................................................................... 82
ARTICLE X. MISCELLANEOUS........................................................................... 83
Section 10.1. Trust Indenture Act Controls.............................................................. 83
Section 10.2. Notices................................................................................... 83
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Section 10.3. Communications by Holders with Other Holders............................................. 84
Section 10.4. Certificate and Opinion as to Conditions Precedent....................................... 84
Section 10.5. Statements Required in Certificate and Opinion........................................... 84
Section 10.6. When Treasury Notes Disregarded.......................................................... 85
Section 10.7. Rules by Trustee and Agents.............................................................. 85
Section 10.8. Business Days; Legal Holidays............................................................ 86
Section 10.9. Governing Law............................................................................ 86
Section 10.10. No Adverse Interpretation of Other Agreements............................................ 86
Section 10.11. No Recourse Against Others............................................................... 86
Section 10.12. Successors............................................................................... 87
Section 10.13. Multiple Counterparts.................................................................... 87
Section 10.14. Table of Contents, Headings, etc......................................................... 87
Section 10.15. Separability............................................................................. 87
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SCHEDULE 1 - PERMITTED AFFILIATE AGREEMENTS
EXHIBIT A FORM OF NOTE
EXHIBIT B-1 FORM OF TRANSFER CERTIFICATE TO BENEFICIAL OWNER OR TO THE
COMPANY
EXHIBIT B-2 FORM OF TRANSFER CERTIFICATE TO BENEFICIAL OWNER OR TO THE
COMPANY
EXHIBIT C FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
EXHIBIT D-1 FORM OF TRANSFER CERTIFICATE IN CONNECTION WITH TRANSFERS TO
INSTITUTIONAL ACCREDITED INVESTORS
EXHIBIT D-2 FORM OF TRANSFER CERTIFICATE IN CONNECTION WITH TRANSFERS TO
ACCREDITED INVESTORS
EXHIBIT E FORM OF CERTIFICATE IN CONNECTION WITH TRANSFERS PURSUANT TO
REGULATION S
EXHIBIT F FORM OF RULE 144 CERTIFICATION
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.8; 7.10
(b)(1) 7.10
(b)(9) 7.10
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.5
(b) 10.3
(c) 10.3
313 (a) 7.6
(b)(1) N.A.
(b)(2) 7.6
(c) 7.6; 10.2
(d) 7.6
314 (a) 4.2; 4.4; 10.2
(b) N.A.
(c)(1) 10.4; 10.5
(c)(2) 10.4; 10.5
(c)(3) N.A.
(d) N.A.
(e) 10.5
(f) N.A.
315 (a) 7.1; 7.2
(b) 7.5; 10.2
(c) 7.1
(d) 6.5; 7.1; 7.2
(e) 6.11
316 (a)(last sentence) 10.6
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) N.A.
(b) 6.7
(c) 8.4
317 (a)(1) 6.8
(a)(2) 6.9
(b) 7.12
318 (a) 10.1
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N.A. means Not Applicable
_____
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
viii
INDENTURE, dated as of July 23, 1999, between PETRO STOPPING CENTERS
HOLDINGS, L.P., a Delaware limited partnership (the "Company") and PETRO
HOLDINGS FINANCIAL CORPORATION, a Delaware corporation and wholly-owned
subsidiary of the Company ("PFC" and, together with the Company, the "Issuers"),
as Issuers, and State Street Bank and Trust Company, a Massachusetts trust
company, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Issuers' 15% Senior
Discount Notes due 2008 (the "Notes").
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
------------------------------------------
Section 1.1. Definitions.
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"10 1/2% Notes" means the 10 1/2% Senior Notes Due 2007 issued by the
Operating Partnership and PFC pursuant to the 10 1/2% Notes Indenture.
"10 1/2% Notes Indenture" means the indenture among the Operating
Partnership, PFC and the Trustee, dated January 30, 1997, as amended as of the
date of the Recapitalization.
"12 1/2% Notes" means the 12 1/2% Notes issued in 1994 by Petro PSC
Properties, L.P., a Delaware limited partnership (the predecessor of the
Operating Partnership) and Petro Financial Corporation.
"Accredited Investor" means an accredited investor as defined in Rule
501(a)(4), (5), (6) or (8) under the Securities Act.
"Accreted Value" means, as of any date prior to August 1, 2004, an
amount per $1,000 principal amount at Stated Maturity of Notes that is equal to
the sum of (a) $483.64 and (b) the portion of the excess of the principal amount
at Stated Maturity of each Note over $483.64 which shall have been amortized on
a daily basis and compounded semi-annually on each February 1 and August 1 at
the rate of 15% per annum from the Issue Date through the date of determination
computed on the basis of a 360-day year of twelve 30-day months; and, as of any
date on or after August 1, 2004, the Accreted Value of each Note shall mean the
aggregate principal amount at Stated Maturity of such Note; provided, however,
that the Issue Date for any Add-On Notes shall be deemed to be the original
Issue Date of the Notes.
"Acquired Debt" means Debt of a Person (including an Unrestricted
Subsidiary) existing at the time such Person becomes a Restricted Subsidiary or
assumed in connection with the acquisition of assets from such Person.
"Add-On Note Board Resolutions" means resolutions duly adopted by the
Board of Directors of the Company and delivered to the Trustee in an Officers'
Certificate providing for the issuance of Add-On Notes.
"Add-On Note Supplemental Indenture" means a supplement to this
Indenture duly executed and delivered by the Company and the Trustee pursuant to
Article IX hereof providing for the issuance of Add-On Notes.
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"Add-On Notes" means additional 15% Senior Discount Notes due 2008 of
the Issuers' issued after the Issue Date pursuant to Section 2.13, including
------------
replacement Notes and, if applicable, any Exchange Notes as specified in the
relevant Add-On Note Board Resolutions or Add-On Note Supplemental Indenture,
issued therefor in accordance with this Indenture.
"Adjusted Interest Expense" means, for any period, without
duplication, an amount equal to the sum of:
(i) the aggregate amount of interest charges (excluding fees and
expenses incurred at or prior to Closing in connection with the Transactions and
any expenses or charges related to Warrant Holdings, the Warrants or the
obligation or right of the Company to purchase the Warrants), whether expensed
or capitalized, incurred or accrued by the Company and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP for
such period (including non-cash interest payments); plus
(ii) to the extent not included in clause (i) above, an amount equal
to the sum of:
(A) net costs associated with Interest Swap Obligations and
Currency Hedge Obligations (including any amortization of discounts); plus
(B) all commissions, discounts and other fees and charges owed
with respect to letters of credit, bankers' acceptances or similar
facilities paid or accrued, or scheduled to be paid or accrued, during such
period; plus
(C) dividends on Preferred Interests and Redeemable Capital
Interests (if paid to a Person other than the Company or one of its
Restricted Subsidiaries) declared and payable in cash; plus
(D) the portion of any Attributable Debt in respect of any Sale
and Leaseback Transaction that is allocable to interest expenses
(determined as if such Sale and Leaseback Transaction were treated as a
Capital Lease Obligation); plus
(E) to the extent any Debt of any other Person is Guaranteed or
secured by the Company or a Restricted Subsidiary in the manner described
in clause (ix) of the definition of "Debt", the aggregate amount of
interest expense of such other Person during such period attributable to
any such Debt determined in accordance with GAAP; minus
(F) amortization or write-off of deferred financing costs during
such period and any charge related to any premium or penalty paid in
connection with redeeming or retiring any Debt of the Company and its
Restricted Subsidiaries prior to the Stated Maturity thereof.
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For purposes of calculating Adjusted Interest Expense on a pro forma basis, the
interest on Debt bearing a floating rate of interest shall be the interest rate
in effect at the time of determination (taking into account on a pro forma basis
any Interest Swap Obligation applicable to such Debt if such Interest Swap
Obligation has a remaining term at the date of determination in excess of 12
months).
"Adjusted Net Income" means, for any period, the consolidated net
income (or net loss) of the Company and its Restricted Subsidiaries determined
in accordance with GAAP for such period minus (to the extent made or reserved)
Permitted Tax Distributions, plus any Permitted Tax Distributions repaid to the
Company; provided that there shall be excluded therefrom, without duplication:
(i) all items classified as extraordinary, unusual or nonrecurring
(including fees and expenses incurred at or prior to Closing and write-offs, in
each case in connection with the Transactions);
(ii) any net loss or net income of any Person that is not a
Restricted Subsidiary, except to the extent of the amount of dividends or other
distributions actually paid to the Company or its Restricted Subsidiaries by
such other Person during such period;
(iii) the net income of any Person acquired by the Company or a
Restricted Subsidiary thereof in a pooling-of-interests transaction for any
period prior to the date of such acquisition;
(iv) any gain or loss, net of taxes, realized on the termination of
any employee pension benefit plan;
(v) gains (but not losses) in respect of Asset Sales by the Company
or its Restricted Subsidiaries;
(vi) with regard to any Restricted Subsidiary all of the Capital
Interests which are not owned by the Company or another Restricted Subsidiary,
any aggregate net income (or loss) in excess of the Company's or such other
Restricted Subsidiary's pro rata share of such Restricted Subsidiary's net
income (or loss); and
(vii) any expenses or charges related to Warrant Holdings, the
Warrants or the obligation or right of the Company to purchase the Warrants.
In computing Adjusted Net Income under clause (c) under Section 4.8, the
Company:
(i) shall use audited financial statements for the portion of the
relevant period for which such statements are available on the date of
determination and unaudited financial statements and other current financial
data based on the books and records of the Company for the remaining portion of
such period; and
(ii) shall be permitted to rely in good faith for the balance of the
relevant period for which audited financial statements are not available on the
financial statements and
3
other financial data derived from the books and records of the Company that are
available on the date of determination.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings that correspond to the foregoing. For purposes of
this Indenture, the term "Affiliate," as it relates to the Company, shall
include Mobil Oil for so long as Mobil Oil is entitled to designate at least one
member of the Board of Directors of the Company and Volvo Trucks for so long as
Volvo Trucks is entitled to designate at least one member of the Board of
Directors of the Company, and shall not include Warrant Holdings or any holder
(other than the Company or any partner of the Company) of Warrants or Warrant
Shares.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
"Asset Sale" means any transfer, conveyance, sale, lease or other
disposition (including, without limitation, dispositions pursuant to any
consolidation or merger) by the Company or any of its Restricted Subsidiaries to
any Person (other than to the Company or one or more of its Restricted
Subsidiaries) in any single transaction or series of transactions of:
(i) Capital Interests in another Person (other than directors'
qualifying shares);
(ii) any other property or assets (other than in the ordinary course
of business, including any sale or other disposition of obsolete or permanently
retired equipment);
provided, however, that the term "Asset Sale" shall exclude:
(A) any asset disposition permitted by the provisions described
under Section 5.1 that constitutes a disposition of all or substantially
all of the assets of the Company and its Restricted Subsidiaries taken as a
whole;
(B) any transfer, conveyance, sale, lease or other disposition
of property or assets, the gross proceeds of which (exclusive of
indemnities) do not exceed $500,000;
(C) sales of Eligible Cash Equivalents;
(D) the Incurrence of any Lien, to the extent not prohibited by
the terms of this Indenture;
(E) sales of Unrestricted Subsidiaries; and
(F) any of the Transactions.
4
For purposes of this definition, any series of related transactions
that, if effected as a single transaction, would constitute an Asset Sale, shall
be deemed to be a single Asset Sale effected when the last such transaction
which is a part thereof is effected.
"Asset Swap" means any exchange of property or assets of the Company
or any Restricted Subsidiary of the Company for property or assets of a third
party which consist of property or assets described in clause (d) of the
definition of "Permitted Investments."
"Attributable Debt" under this Indenture in respect of a Sale and
Leaseback Transaction means, as at the time of determination, the greater of:
(i) the fair value of the property subject to such arrangement (as
determined in good faith by the Board of Directors); and
(ii) the present value (discounted at the rate of interest implicit
in such transaction) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale and Leaseback
Transaction (including any period for which such lease has been extended).
"Average Life" means, as of any date of determination, with respect to
any Debt, the quotient obtained by dividing:
(i) the sum of the products of:
(x) the number of years from the date of determination to the
dates of each successive scheduled principal payment (including any sinking
fund or mandatory redemption payment requirements) of such Debt multiplied
by
(y) the amount of such principal payment by
(ii) the sum of all such principal payments.
"Board of Directors" means (i) with respect to the Company or any
other Restricted Subsidiary, its Board of Directors; (ii) with respect to a
corporation, the board of directors of such corporation or any duly authorized
committee thereof; and (iii) with respect to any other entity, the board of
directors or similar body of the general partner or managers of such entity or
any duly authorized committee thereof.
"Board Resolution" means, as to any Person, a copy of a resolution
certified pursuant to an Officers' Certificate to have been duly adopted by the
Board of Directors of such Person, and to be in full force and effect, and, if
required hereunder, delivered to the Trustee.
"Capital Interests" in any Person means any and all shares, interests
(including Preferred Interests), participations or other equivalents in the
equity interest (however designated) in such Person and any rights (other than
Debt securities convertible into an equity interest), warrants or options to
acquire an equity interest in such Person.
5
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangement
conveying the right to use) real or personal property of such Person, to the
extent such obligations are required to be classified and accounted for as a
capital lease or a liability on the face of a balance sheet of such Person in
accordance with GAAP. The Stated Maturity of any Capital Lease Obligation shall
be the date of the last payment of rent or any other amount due under such lease
(or other Debt arrangement) prior to the first date upon which such lease (or
other Debt arrangement) may be terminated by the user of such real or personal
property without payment of a penalty, and the amount of any Capital Lease
Obligation shall be the capitalized amount thereof determined in accordance with
GAAP.
"▇▇▇▇▇▇▇▇ Group" means ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
and their respective spouses, lineal descendents, estates and Affiliates,
including Petro Inc. (a corporation wholly owned by ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.) and
JAJCO II, Inc. (a company wholly owned by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.).
"Certificated Note" means any Note issued in fully-registered
certificated form (other than a Global Note), which shall be substantially in
the form of Exhibit A hereto, with appropriate legends as specified in Section
2.7 and Exhibit A.
"Change of Control" means the occurrence of any of the following
events:
(i) prior to a Public Equity Offering, either:
(A) the Permitted Holders cease to be the "beneficial owner" (as
such term is used in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, in the aggregate of a majority of the Common
Interests in the Company, whether as a result of issuance of securities of
the Company or any parent company of the Company, any merger,
consolidation, liquidation or dissolution of the Company, any direct or
indirect transfer of securities by the Company or otherwise; or
(B) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more Permitted
Holders, has the power or right to designate a majority of the members of
the Company's Board of Directors;
(ii) after the consummation of a Public Equity Offering;
(A) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more Permitted
Holders, is or becomes the "beneficial owner" (as such term is used in
Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of
this clause (ii) such person or group shall be deemed to have "beneficial
ownership" of all shares that any such person or group has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 30% of the Common
Interests in the Company; and
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(B) the Permitted Holders "beneficially own" (as defined in
this clause (ii)), directly or indirectly, in the aggregate a lesser
percentage of the total Common Interests of the Company than such other
person or group;
(iii) the Company ceases to own directly or indirectly at least 99%
of the total voting power and economic benefit of the Capital Interests of the
Operating Partnership;
(iv) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by the Board of Directors or
whose nomination for election by the stockholders of the Company was approved by
a vote of a majority of the directors of the Company 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 66 2/3% of the Company' Board of Directors then in office; or
(v) the Company sells, conveys, transfers or leases (either in one
transaction or a series of related transactions) all or substantially all of its
assets to a Person other than a Restricted Subsidiary of the Company or a
Successor Entity in which a majority or more of the voting power of the Voting
Interests is held by the Permitted Holders.
"Chartwell" means Chartwell Investments Inc. and its Affiliates.
"Chartwell Interests" means Capital Interests in the Operating
Partnership held by Chartwell.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Interests" of any Person means Capital Interests in such
Person that do not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to Capital Interests of any other
class in such Person.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor(s) replaces such party pursuant to Article V of this
Indenture and, thereafter, means the successor.
"Company Request" means any written request signed in the name of the
Company and PFC by an Officer of each of the Company and PFC.
"Consolidated Net Worth" of the Company means, as of any date, the
aggregate of capital, surplus and retained earnings of the Company and its
Restricted Subsidiaries as would be shown on a consolidated balance sheet of the
Company and its Restricted Subsidiaries prepared as of such date in accordance
with GAAP, less all amounts, if any, attributable to Redeemable Capital
Interests in such Person.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the
7
date of execution of this Indenture is located at ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"Credit Agreement" means one or more secured or unsecured credit
agreements providing, inter alia, for revolving credit loans, term loans and/or
letters of credit between the Company or any Subsidiary and one or more lenders,
together with all related notes, letters of credit, collateral documents,
guarantees, and any other related agreements and instruments executed and
delivered in connection therewith, in each case as amended, modified,
supplemented, refinanced, refunded or replaced in whole or in part from time to
time.
"Currency Hedge Obligations" means the obligations of a Person
Incurred pursuant to any foreign currency exchange agreement, option or futures
contract or other similar agreement or arrangement designed to protect against
or manage such Person's exposure to fluctuations in foreign currency exchange
rates on Debt permitted under this Indenture.
"Damage Amount" means an amount to be paid as liquidated damages by
the Issuers to each Holder of Notes under certain circumstances in accordance
with the terms of the Registration Rights Agreement.
"Debt" means at any time (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person, or
non-recourse, and whether or not contingent, the following:
(i) all indebtedness of such Person for money borrowed, excluding
any trade payables, other current liabilities incurred in the ordinary course of
business and any liability for federal, state or local income taxes or other
taxes owed by such Person;
(ii) all obligations (other than interest, premium and additional
payments, if any) of such Person evidenced by bonds, debentures, notes, or other
similar instruments;
(iii) all obligations of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person;
(iv) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property or assets acquired
by such Person (even if the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of
such property or assets);
(v) all Capital Lease Obligations of such Person;
(vi) the maximum fixed redemption or repurchase price of Redeemable
Capital Interests in such Person at the time of determination;
(vii) any Interest Swap Obligations and Currency Hedge Obligations of
such Person at the time of determination;
(viii) Attributable Debt with respect to any Sale and Leaseback
Transaction to which such Person is a party; and
8
(ix) all obligations of the types referred to in clauses (i) through
(viii) of this definition of another Person and all dividends and other
distributions of another Person, the payment of which, in either case:
(A) such Person has Guaranteed; or
(B) is secured by (or the holder of such Debt or the recipient
of such dividends or other distributions has an existing right, whether
contingent or otherwise, to be secured by) any Lien upon the property or
other assets of such Person, even though such Person has not assumed or
become liable for the payment of such Debt, dividends or other
distributions.
For purposes of the foregoing:
(a) the maximum fixed repurchase price of any Redeemable Capital
Interests that do not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Interests as if such
Redeemable Capital Interests were repurchased on any date on which Debt shall be
required to be determined pursuant to this Indenture; provided, however, that,
if such Redeemable Capital Interests are not then permitted to be repurchased,
the repurchase price shall be the book value of such Redeemable Capital
Interests;
(b) the amount outstanding at any time of any Debt issued with
original issue discount is the principal amount of such Debt less the remaining
unamortized portion of the original issue discount of such Debt at such time as
determined in conformity with GAAP, but such Debt shall be deemed Incurred only
as of the date of original issuance thereof;
(c) the amount of any Debt described in clause (ix)(A) above shall be
the maximum liability under any such Guarantee; and
(d) the amount of any Debt described in clause (ix)(B) above shall be
the lesser of:
(I) the maximum amount of the obligations so secured; and
(II) the Fair Market Value of such property or other assets.
Notwithstanding the foregoing, neither the Warrants nor any obligation
to purchase the Warrants that may arise under the warrant agreement shall be
Debt.
"Default" means any event that is, or after notice or passage of time,
or both, would be, any Event of Default.
"Depository" means The Depository Trust Company, its nominees and
their respective successors and assigns, or such other depositary institution
hereinafter appointed by the Company that is a clearing agency registered under
the Exchange Act.
"Disinterested Director" means, with respect to any proposed
transaction between:
9
(i) the Company or a Restricted Subsidiary, as applicable; and
(ii) an Affiliate thereof (other than the Company or a Restricted
Subsidiary), a member of the Board of Directors of the Company or such
Restricted Subsidiary, as applicable, who would not be a party to, or have a
financial interest in, such transaction and is not an officer, director or
employee of, and does not have a financial interest in, such Affiliate.
For purposes of this definition, no person would be deemed not to be a
Disinterested Director solely because such person holds Capital Interests in the
Company.
"EBITDA" means, with respect to the Company and its Restricted
Subsidiaries, for any period, the sum of Adjusted Net Income plus, to the extent
reflected in Adjusted Net Income for such period for which Adjusted Net Income
is determined, without duplication,
(i) Adjusted Interest Expense;
(ii) income tax expense (or Permitted Tax Distributions in lieu
thereof);
(iii) depreciation expense;
(iv) amortization expense;
(v) any charge related to any premium or penalty paid in connection
with redeeming or retiring any Debt prior to its Stated Maturity; and
(vi) any other non-cash items reducing Adjusted Net Income; minus
any non-cash items increasing Adjusted Net Income.
"Eligible Bank" means a bank or trust company that:
(i) is organized and existing under the laws of the United States
of America or Canada, or any state, territory, province or possession thereof;
and
(ii) as of the time of the making or acquisition of an Investment in
such bank or trust company, has combined capital and surplus in excess of
$500,000,000, the senior Debt of which is rated at least "A-2" by Moody's or at
least "A" by Standard & Poor's.
"Eligible Cash Equivalents" means any of the following Investments:
(i) securities issued or directly and fully guaranteed or insured
by the United States or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof)
maturing not more than one year after the date of acquisition;
(ii) time deposits in and certificates of deposit of any Eligible
Bank, provided that such Investments have a maturity date not more than two
years after date of acquisition and that the Average Life of all such
Investments is one year or less from the respective dates of acquisition;
10
(iii) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (i) above entered into
with any Eligible Bank;
(iv) direct obligations issued by any state of the United States or
any political subdivision or public instrumentality thereof, provided that such
Investments mature, or are subject to tender at the option of the holder
thereof, within 90 days after the date of acquisition and, at the time of
acquisition, have a rating of at least A from Standard & Poor's or A-2 from
Moody's (or an equivalent rating by any other nationally recognized rating
agency);
(v) commercial paper of any Person other than an Affiliate of the
Company, provided that such Investments have one of the two highest ratings
obtainable from either Standard & Poor's or Moody's and mature within 90 days
after the date of acquisition;
(vi) overnight and demand deposits in and bankers' acceptances of
any Eligible Bank and demand deposits in any bank or trust company to the extent
insured by the Federal Deposit Insurance Corporation against the Bank Insurance
Fund; and
(vii) money market funds substantially all of the assets of which
comprise Investments of the types described in clauses (i) through (vi).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means Notes issued in a Registered Exchange Offer in
exchange for a like principal amount of Notes originally issued pursuant to an
exemption from registration under the Securities Act, and replacement Notes
issued therefor in accordance with this Indenture.
"Expiration Date" has the meaning set forth in the definition of
"Offer to Purchase."
"Fair Market Value" means, with respect to the consideration received
or paid in any transaction or series of transactions, the fair market value
thereof as determined in good faith by the Board of Directors.
"Franchisee Receivables" means fuel, lube, repair and other
receivables purchased by the Company or any Restricted Subsidiary from any of
their franchisees, licensees or third party contractors operating a Stopping
Center affiliated with the Operating Partnership's network of Stopping Centers.
"Fuel Hedging Obligations" means the obligations of a Person pursuant
to fuel price swap, fuel price cap, fuel price collar and fuel price floor and
similar agreements and hedging obligations and arrangements, in the ordinary
course of business, designed to protect against or manage such Person's exposure
to fluctuations in fuel prices.
11
"GAAP" means generally accepted accounting principles in the United
States, consistently applied, as set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board, or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession of the United
States, that are applicable to the circumstances as of the date of
determination.
"Global Notes" means any Note issued in fully-registered certificated
form to the Depository (or its nominee), as depositary for the beneficial owners
thereof, which shall be substantially in the form of Exhibit A hereto, with
---------
appropriate legends as specified in Section 2.7 and Exhibit A.
----------- ---------
"Guarantee" means, as applied to any Debt of another Person,
(i) a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner, of any part or all of such Debt,
(ii) any direct or indirect obligation, contingent or otherwise, of
a Person guaranteeing or having the effect of guaranteeing the Debt of any other
Person in any manner and
(iii) an agreement of a Person, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such Debt of another Person (and "Guaranteed", "Guaranteeing" and
"Guarantor" shall have meanings that correspond to the foregoing).
"Holder" means a Person in whose name a Note is registered in the
security register.
"IAI" means an institutional "accredited investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act, other than a QIB.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to GAAP or otherwise, of any such Debt or
other obligation on the balance sheet of such Person; provided, however, that a
change in GAAP that results in an obligation of such Person that exists at such
time becoming Debt shall not be deemed an Incurrence of such Debt. Debt
otherwise Incurred by a Person before it becomes a Subsidiary of the Company
shall be deemed to be Incurred at the time at which such Person becomes a
Subsidiary of the Company. With respect to Debt the proceeds of which are to be
used solely to develop one or more Stopping Centers and to be borrowed pursuant
to a binding commitment previously entered into in good faith with a lending
institution, the Company or any Restricted Subsidiary shall, at its election, be
deemed to have Incurred Debt in a designated amount of up to the completion cost
of the project, based on the good faith estimate of management in accordance
with past practices and certified and so
12
designated to the Trustee in an officers' certificate, including a resolution of
the Board of Directors, at the time of such designation, but only to the extent
such proceeds are actually borrowed within 365 days after such delivery date, in
which case the excess of the committed amount over the amount actually borrowed
shall not be deemed Incurred for the purposes of this definition. "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings that correspond to
the foregoing. A Guarantee by the Company or a Restricted Subsidiary of Debt
incurred by the Company or a Restricted Subsidiary, as applicable, shall not be
a separate incurrence of Debt.
"Indenture" means this Indenture as amended, restated or supplemented
from time to time.
"Interest Coverage Ratio" means, at any date of determination, the
ratio of:
(i) EBITDA, as defined, to
(ii) Adjusted Interest Expense, in both cases for the Specified
Period.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Interest Swap Obligations" means the obligations of a Person pursuant
to any interest rate swap agreement, interest rate cap, collar or floor
agreement or other similar agreement or arrangement designed to protect against
or manage such Person's exposure to fluctuations in interest rates on Debt
permitted under this Indenture.
"Investment" by any Person means any direct or indirect loan, advance
(or other extension of credit) or capital contribution to (by means of any
transfer of cash or other property or assets to another Person or any other
payments for property or services for the account or use of another Person),
including without limitation the following:
(i) the purchase or acquisition of any Capital Interest or other
evidence of beneficial ownership in another Person;
(ii) the purchase, acquisition or Guarantee of the Debt of another
Person or the issuance of a "keep well" with respect thereto; and
(iii) the purchase or acquisition of the business or assets of
another Person;
but shall exclude:
(a) accounts receivable and other extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices;
(b) the acquisition of property and assets from suppliers and other
vendors in the ordinary course of business;
13
(c) prepaid expenses and workers' compensation, utility, lease and
similar deposits, in the ordinary course of business; and
(d) the purchase or exchange of the Warrants.
"Issue Date" means July 23, 1999.
"Issue Date Notes" means (i) the $113,370,000 aggregate principal
amount of the Issuers' Notes originally issued on the Issue Date, and
replacement Notes and the Exchange Notes issued therefor in accordance with this
Indenture.
"Issuers" means the Company and PFC.
"▇▇▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇▇▇ Investments and its Affiliates.
"▇▇▇▇▇▇▇▇▇ Interests" means Capital Interests in the Operating
Partnership held by ▇▇▇▇▇▇▇▇▇.
"Lien" means, with respect to any property or other asset any mortgage
or deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, lien (statutory or otherwise), charge, easement, encumbrance,
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property or other asset
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Make-Whole Premium" means, with respect to any Note on any Redemption
Date, the greater of (i) 1.0% of the Accreted Value of such Note and (ii) the
excess of (A) the present value at such time of the redemption price of such
Note at August 1, 2004 (such redemption price being set forth in the table in
Section 3.7 below) computed using a discount rate equal to the Treasury Rate
plus 0.50% per annum, over (B) the Accreted Value of such Note on such
Redemption Date.
"Maturity Date" means August 1, 2008.
"Mobil Oil" means Mobil Oil Corporation and its Affiliates.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to Asset Sales of any Person,
cash and Eligible Cash Equivalents received net of:
(i) all reasonable out-of-pocket expenses of such Person incurred in
connection with such a sale, including, without limitation, all legal, title and
recording tax expenses, commissions and other fees and expenses incurred and all
federal, state, foreign and local taxes arising in connection with such an Asset
Sale that are paid or required to be accrued as a liability under GAAP by such
Person, and Permitted Tax Distributions attributable thereto;
14
(ii) all payments made by such Person on any Debt that is secured by
such Properties or other assets in accordance with the terms of any Lien upon or
with respect to such Properties or other assets or that must, by the terms of
such Lien or such Debt, or in order to obtain a necessary consent to such
transaction or by applicable law, be repaid to any other Person (other than the
Company or a Restricted Subsidiary thereof) in connection with such Asset Sale;
and
(iii) all contractually required distributions and other payments
made to minority interest holders in Restricted Subsidiaries of such Person as a
result of such transaction;
provided, however, that:
(a) in the event that any consideration for an Asset Sale (which
would otherwise constitute Net Cash Proceeds) is required by
(I) contract to be held in escrow pending determination of
whether a purchase price adjustment will be made or
(II) GAAP to be reserved against other liabilities in
connection with such Asset Sale,
such consideration (or any portion thereof) shall become Net Cash Proceeds only
at such time as it is released to such Person from escrow or otherwise; and
(b) any non-cash consideration received in connection with any
transaction, which is subsequently converted to cash, shall become Net Cash
Proceeds only at such time as it is so converted.
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"Notes" means any of the Issuers' 15% Senior Discount Notes Due 2008
that are issued under this Indenture, as amended or supplemented from time to
time pursuant to this Indenture.
"Note Custodian" means the custodian with respect to any Global Note
appointed by the Depository, or any successor Person thereto, and shall
initially be the Trustee.
"Obligations" means, with respect to any Debt, any principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
expenses payable under the documentation governing such Debt.
"Offer" has the meaning set forth in the definition of "Offer to
Purchase".
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the security register on the date of the Offer offering to purchase
up to the aggregate:
15
(i) Accreted Value of Notes, if the Purchase Date is on or prior to
August 1, 2004, or
(ii) principal amount of Notes at Stated Maturity, if the Purchase
Date is after August 1, 2004,
set forth in such Offer at the purchase price set forth in such Offer (as
determined pursuant to this Indenture). Unless otherwise required by applicable
law, the Offer shall specify an expiration date (the "Expiration Date") of the
Offer to Purchase which shall be, subject to any contrary requirements of
applicable law, not less than 30 days or more than 60 days after the date of
mailing of such Offer and a settlement date (the "Purchase Date") for purchase
of Notes within five business days after the Expiration Date. The Company shall
notify the Trustee at least 15 days (or such shorter period as is acceptable to
the Trustee) prior to the mailing of the Offer of the Company' obligation to
make an Offer to Purchase, and the Offer shall be mailed by the Company or, at
the Company' request, by the Trustee in the name and at the expense of the
Company. The Offer shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer
shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount at Stated Maturity of the
outstanding Notes offered to be purchased pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to Indenture covenants requiring the Offer to Purchase) (the
"Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
principal amount of Notes at Stated Maturity accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note tendered
must be tendered in an integral multiple of $1,000 principal amount at Stated
Maturity;
(6) the place or places where Notes are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that, unless the Company defaults in making such purchase, any
Note accepted for purchase pursuant to the Offer to Purchase will, after the
Purchase Date, cease
(x) to accrete value, if the Purchase Date is on or prior to
August 1, 2004, or
(y) to accrue interest, if the Purchase Date is after August 1,
2004,
16
but that any Note not tendered or tendered but not purchased by the Company
pursuant to the Offer to Purchase will continue to accrete value or to accrue
interest at the same rate, as the case may be;
(8) that, on the Purchase Date, the Purchase Price will become due
and payable upon each Note accepted for payment pursuant to the Offer to
Purchase;
(9) that each Holder electing to tender a Note pursuant to the Offer
to Purchase will be required to surrender such note at the place or places set
forth in the Offer prior to the close of business on the Expiration Date (such
Note being, if the Company or the Trustee so requires, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion of
Notes tendered if the Company (or its paying agent) receives, not later than the
close of business on the Expiration Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the aggregate
principal amount of the Notes the Holder tendered, the certificate number of the
Note the Holder tendered and a statement that such Holder is withdrawing all or
a portion of his tender;
(11) that:
(a) if Notes having an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase all such Notes and
(b) if Notes having an aggregate principal amount in excess of
the Purchase Amount are tendered and not withdrawn pursuant to the Offer to
Purchase, the Company shall purchase Notes having an aggregate principal
amount equal to the Purchase Amount on a pro rata basis (with such
adjustments as may be deemed appropriate so that only Notes in
denominations of $1,000 principal amount or integral multiples thereof
shall be purchased); and
(12) that, in the case of any Holder whose Note is purchased only in
part, the Issuers shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Note without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder, in the aggregate principal
amount equal to and in exchange for the unpurchased portion of the aggregate
principal amount of the Notes so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer for such Offer to Purchase.
"Offering" means the offering of the Notes as described in the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum dated July 19,
1999, pursuant to which the Notes were offered.
17
"Officer" means, with respect to any Person, the Chairman, the
President, the Chief Executive Officer, the Chief Operating Officer, any Vice
President, the Chief Financial Officer, the Controller, the Chief Accounting
Officer, the Treasurer or the Secretary of such Person (or, in the case of a
Person that is a partnership, a general partner of such Person in such
capacity), and in the case of the Trustee, shall mean a Trust Officer, as
defined below.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman, the President, the Chief Executive Officer,
the Chief Operating Officer or any Vice President and the Chief Financial
Officer, the Controller, the Chief Accounting Officer or any Treasurer of such
Person that shall comply with applicable provisions of this Indenture, and in
the case of the Trustee, shall mean a certificate signed by a Trust Officer, as
defined below.
"Operating Partnership" means Petro Stopping Centers, L.P.
"Opinion of Counsel" means a written opinion from legal counsel, who
may be an employee of the Company, which counsel is reasonably acceptable to the
Trustee.
"Option Plan" means the 1997 Class B Common Limited Partnership
Interests Option Plan.
"Permitted Affiliate Agreements" means the agreements between and
among the Company or any Restricted Subsidiary and each of the ▇▇▇▇▇▇▇▇ Group,
Mobil Oil and Volvo Trucks North America, listed in this Indenture in effect
immediately after the initial issuance of the Notes and as the same may be
amended from time to time subject to the provisions of Section 4.10; provided
that, notwithstanding Section 4.10, such agreements may be extended from time to
time or otherwise amended, to the extent the Board of Directors of the Company
has determined in good faith that no material adverse effect on the
creditworthiness of the Company and its Restricted Subsidiaries, taken as a
whole, shall result as a consequence thereby.
"Permitted Debt" means:
(i) Debt Incurred pursuant to Credit Agreements (other than
pursuant to the first paragraph of the Limitation on Debt covenant) in an
aggregate principal amount not to exceed $45,000,000 at any one time
outstanding, less the aggregate amount of all Net Cash Proceeds from any Asset
Sale that have been applied to permanently reduce the outstanding amount of Debt
under such Credit Agreement borrowed under this clause (i); provided, that the
sum of the aggregate principal amount of Debt under this clause (i) plus the
aggregate principal amount of Debt under clauses (xi), (xii) and (xiii) shall
not exceed $45,000,000.
(ii) Debt outstanding under the Notes and contribution,
indemnification and reimbursement obligations owed by any Issuer to any of the
other of them in respect of amounts paid or payable on such Notes;
(iii) Debt of the Company or any Restricted Subsidiary outstanding at
the time of the initial issuance of the Notes;
(iv) Debt owed to and held by the Company or a Wholly-Owned
Restricted Subsidiary;
18
(v) Guarantees Incurred by the Company or any Restricted Subsidiary
in the ordinary course of business;
(vi) Guarantees by the Company or any Restricted Subsidiary of Debt
of the Company or any Restricted Subsidiary, including Guarantees by the Company
or any Restricted Subsidiary of Debt under a Credit Agreement, provided that
such Debt (other than Debt Incurred under clauses (i) and (ii) of this
definition) is Incurred in accordance with the "Limitation on Debt" covenant;
(vii) Debt in respect of performance, surety or appeal bonds provided
in the ordinary course of business;
(viii) Debt under Interest Swap Obligations and Currency Hedge
Obligations;
(ix) Debt owed by the Company to any Restricted Subsidiary, provided
that if for any reason such Debt ceases to be held by a Restricted Subsidiary,
such Debt shall cease to be Permitted Debt and shall be deemed Incurred as Debt
of the Company for purposes of this Indenture;
(x) Debt Incurred to pay for any Notes, any 12 1/2% Notes and any
10 1/2% Notes tendered pursuant to an Offer to Purchase in connection with a
Change of Control, provided that:
(a) the principal amount of such Debt does not exceed the
principal of the notes purchased (plus the amount of reasonable expenses
incurred in connection therewith, including the applicable purchase
premium, but excluding accrued interest, if any) and
(b) such Debt:
(1) has an Average Life to Stated Maturity at least equal
to or greater than the remaining Average Life to Stated Maturity of
the notes and
(2) does not mature prior to the Stated Maturity of the
notes;
(xi) Debt of a Person:
(a) existing at the time such Person becomes a Restricted
Subsidiary or
(b) assumed in connection with the acquisition of assets from
such Person, other than Debt Incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary or such
acquisition, as the case may be, provided that the sum of the aggregate
principal amount of Debt under this clause (xi) plus the aggregate
principal amount of Debt under clauses (i), (xii) and (xiii) shall not
exceed $45,000,000;
19
(xii) Debt of the Company or any Restricted Subsidiary pursuant to
Capital Lease Obligations and Purchase Money Debt Incurred in the ordinary
course of business, provided that the aggregate principal amount of such Debt
outstanding at any time may not exceed $5,000,000 in the aggregate; provided,
further that the sum of the aggregate principal amount of Debt under this clause
(xii) plus the aggregate principal amount of Debt under clauses (i), (xi) and
(xiii) shall not exceed $45,000,000.
(xiii) Debt of the Company or any Restricted Subsidiary not otherwise
permitted pursuant to this definition, in an aggregate principal amount not to
exceed $15,000,000 at any time outstanding; provided, that the sum of the
aggregate principal amount of Debt under this clause (xiii) plus the aggregate
principal amount of Debt under clauses (i), (xi) and (xii) shall not exceed
$45,000,000;
(xiv) Refinancing Debt; and
(xv) Debt of Holdings or any restricted Subsidiary, the proceeds of
which are used to purchase Warrants or that is issued in exchange for Warrants.
"Permitted Holders" means (1) the ▇▇▇▇▇▇▇▇ Group, (2) Mobil Oil and
(3) Volvo Trucks.
"Permitted Investments" means:
(a) Investments in existence on the date of initial issuance of
the Notes;
(b) Investments required pursuant to any agreement or
obligation of the Company or a Restricted Subsidiary, in effect on the
Issue Date, to make such Investments;
(c) Eligible Cash Equivalents;
(d) Investments in property and other assets, including
Stopping Centers and Franchisee Receivables, owned or used by the Company
or any Restricted Subsidiary in the ordinary course of business;
(e) Investments by the Company or any of its Restricted
Subsidiaries in the Company or any Restricted Subsidiaries;
(f) Investments by the Company or any Restricted Subsidiary in
a Person, if as a result of such Investment:
(A) such Person becomes a Restricted Subsidiary or
(B) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated or wound-up into, the Company or a Restricted Subsidiary;
20
(g) loans and advances to employees made in the ordinary course
of business in an amount not to exceed $750,000 in the aggregate at any
time outstanding;
(h) Interest Swap Obligations and Currency Hedge Obligations;
(i) non-cash consideration received in conjunction with an
Asset Sale that is otherwise permitted under Section 4.9;
(j) Fuel Hedging Obligations Incurred in the ordinary course of
business;
(k) Investments received in settlement of obligations owed to
the Company or any Restricted Subsidiary and as a result of bankruptcy or
insolvency proceedings or upon the foreclosure or enforcement of any Lien
in favor of the Company or any Restricted Subsidiary; and
(l) Investments by the Company or any Restricted Subsidiary not
otherwise permitted under this definition, in an aggregate amount not to
exceed $10,000,000 at any one time outstanding.
"Permitted Liens" means:
(a) Liens existing at the time of the initial issuance of the
Notes;
(b) Liens to secure Debt under a Credit Agreement or Debt
Incurred under clause (xiii) of the definition of "Permitted Debt," in the
aggregate, of up to $170,000,000 aggregate principal amount;
(c) Liens on property or assets of the Company securing Debt
Incurred in compliance with clause (xii) of the definition of "Permitted
Debt";
(d) any Lien for taxes or assessments or other governmental
charges or levies not then due and payable (or which, if due and payable,
are being contested in good faith and for which adequate reserves are being
maintained, to the extent required by GAAP);
(e) any statutory warehousemen's, materialmen's, landlord's or
other similar Liens for sums not then due and payable (or which, if due and
payable, are being contested in good faith and with respect to which
adequate reserves are being maintained, to the extent required by GAAP);
(f) any title exception, easement, right-of-way, lease, sub-
lease or other similar Lien that does not materially impair the use or
value of the property subject thereto in its use in the business of the
Company or a Restricted Subsidiary thereof;
(g) Liens on property or other assets:
21
(i) in connection with workers' compensation, unemployment
insurance and other types of statutory obligations or the requirements
of any official body, or
(ii) to secure the performance of tenders, bids, surety or
performance bonds, leases, purchase, construction, sales or servicing
contracts and other similar obligations Incurred in the ordinary
course of business consistent with industry practice; or
(iii) to obtain or secure obligations with respect to
letters of credit, Guarantees, bonds or other sureties or assurances
given in connection with the activities described in clauses (i) and
(ii) above, in each case not Incurred or made in connection with the
borrowing of money, the obtaining of advances or credit or the payment
of the deferred purchase price of property or services or imposed by
ERISA or the Internal Revenue Code in connection with a "plan" (as
defined in ERISA) (other than any Lien imposed in connection with the
Company' 401(k) Plan) or
(iv) arising in connection with any attachment or judgment
unless such Liens shall not be satisfied or discharged or stayed
pending appeal within 60 days after the entry thereof or the
expiration of any such stay;
(h) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the Company (and not
Incurred in anticipation of such transaction), provided that such Liens are
not extended to the property and assets of the Company other than the
property or assets acquired;
(i) other Liens incidental to the conduct of the business of the
Company or the ownership of its assets that do not materially impair the
use or value of the property subject thereto in its use in the business of
the Company;
(j) Liens securing obligations under Interest Swap Obligations,
Currency Hedge Obligations and Fuel Hedging Obligations Incurred in
connection with managing interest or currency risk resulting from or
related to a Credit Agreement; and
(k) Liens to secure any permitted extension, renewal,
refinancing or refunding (or successive extensions, renewals, refinancings
or refundings), in whole or in part, of any Debt secured by Liens referred
to in the foregoing clauses (a) through (j); provided that such Liens do
not extend to any other property or assets and the principal amount of the
Debt secured by such Liens is not increased.
"Permitted Tax Distribution" means for any fiscal year or portion
thereof (the "Tax Year") of any Person in which period such Person is a
partnership or other substantially similar pass-through entity for federal
income tax purposes, distributions to enable the partners or members of such
Person to make payments of federal, state and local income taxes (including
estimates thereof) in respect of the Taxable Income of such partner or member
with respect to each such Tax Year in an aggregate amount equal to the product
of:
(i) the excess of:
22
(A) the sum of the highest marginal federal income tax rate
applicable during such Tax Year to either corporations or individuals and
the State Income Tax Rate over
(B) the product of such federal rate and the State Income Tax
Rate; and
(ii) such partner's or member's Taxable Income for such Tax Year.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"PFC" means the party named as such in the first paragraph of this
Indenture until a successor(s) replaces such party pursuant to Article V of this
Indenture and, thereafter, means the successor.
"Phantom Option Plan" means the incentive plan to be adopted by the
Company substantially as described in the Offering Memorandum.
"Preferred Interests," as applied to the Capital Interests in any
Person, means Capital Interests in such Person of any class or classes (however
designated) that rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Common Interests in such
Person.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
"Public Equity Offering" means any underwritten public offering of
Capital Interests of the Company or a Successor Entity pursuant to an effective
registration statement (other than a registration statement on Form S-4 or Form
S-8 or any successor or similar form) under the Securities Act.
"Purchase Amount" has the meaning set forth in the definition of
"Offer to Purchase."
"Purchase Date" has the meaning set forth in the definition of "Offer
to Purchase."
"Purchase Money Debt" means Debt:
(i) Incurred to finance the purchase or construction of any assets of
such Person or any Restricted Subsidiary; and
(ii) that is secured by a Lien on such assets where the lender's sole
security is to the assets so purchased or constructed, in either case that does
not exceed 100% of the cost and to the extent the purchase or construction
prices for such assets are or should be included in "addition to property, plant
or equipment" in accordance with GAAP.
23
"Purchase Price" has the meaning set forth in the definition of "Offer
to Purchase."
"Qualified Capital Interests" in any Person means a class of Capital
Interests other than Redeemable Capital Interests.
"Qualified Institutional Buyer" or "QIB" have the meaning set forth in
Rule 144A.
"Redeemable Capital Interests" in any Person means any equity security
of such Person that by its terms (or by terms of any security into which it is
convertible or for which it is exchangeable), or otherwise (including the
passage of time or the happening of an event), is required to be redeemed, is
redeemable at the option of the holder thereof in whole or in part (including by
operation of a sinking fund), or is convertible or exchangeable for Debt of such
Person at the option of the holder thereof, in whole or in part, at any time
prior to the Stated Maturity of the Notes; provided, however, that Preferred
Interests of the Company or any Restricted Subsidiary thereof that are issued
with the benefit of provisions requiring a change of control offer to be made
for such Preferred Interests in the event of a change of control of the Company
or any Restricted Subsidiary, which provisions have substantially the same
effect as the provisions of this Indenture described under Section 4.18, shall
not be deemed to be Redeemable Capital Interests solely by virtue of such
provisions; provided, further, that none of the Warrants, the partnership
interest held by Warrant Holdings, or the obligation to purchase the Warrants
shall be Redeemable Capital Interests.
"Redemption Date," when used with respect to any Note to be redeemed,
means the date on which it is to be redeemed pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Refinancing Debt" means Debt that refunds, refinances, renews,
replaces or extends any Debt permitted to be incurred by the Company or any
Restricted Subsidiary pursuant to the terms of this Indenture, whether involving
the same or any other lender or creditor or group of lenders or creditors, but
only to the extent that:
(i) the Refinancing Debt is subordinated to the Notes to at least
the same extent as the Debt being refunded, refinanced or extended, if at all,
(ii) the Refinancing Debt is scheduled to mature either:
(a) no earlier than the Debt being refunded, refinanced or
extended, or
(b) at least 91 days after the maturity date of the Notes,
(iii) the Refinancing Debt has a weighted average life to maturity at
the time such Refinancing Debt is incurred that is equal to or greater than the
weighted average life to maturity of the Debt being refunded, refinanced,
renewed, replaced or extended,
24
(iv) such Refinancing Debt is in an aggregate principal amount that is
less than or equal to the sum of:
(a) the aggregate principal or accreted amount (in the case of
any Debt issued with original issue discount, as such) then outstanding
under the Debt being refunded, refinanced, renewed, replaced or extended,
(b) the amount of accrued and unpaid interest, if any, and
premiums owed, if any, not in excess of preexisting prepayment provisions
on such Debt being refunded, refinanced or extended and
(c) the amount of customary fees, expenses and costs related to
the incurrence of such Refinancing Debt, and
(v) such Refinancing Debt is incurred by the same Person (or its
successor) that initially incurred the Debt being refunded, refinanced, renewed,
replaced or extended, except that the Company may incur Refinancing Debt to
refund, refinance, renew, replace or extend Debt of any Wholly-Owned Restricted
Subsidiary of the Company.
"Registered Exchange Offer" means an exchange offer by the Company
registered under the Securities Act pursuant to which Notes originally issued
pursuant to an exemption from registration under the Securities Act are
exchanged for Notes of like principal amount not bearing the Private Placement
Legend.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated July 23, 1999, among the Issuers, Petro Holdings LP Corp.,
First Union Capital Markets Corp. and CIBC World Markets Corp.
"Registration Statement" means an effective shelf registration
statement under the Securities Act that registers the resale by Holders (or
beneficial owners) of Notes (or beneficial interests therein) originally issued
pursuant to an exemption from registration under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act
(including any successor regulation thereto), as it may be amended from time to
time.
"Replacement Asset" means, with respect to any Asset Sale, a property
or asset that consists of a Stopping Center or that, as determined by the Board
of Directors as evidenced by a board resolution, is used or will be used in the
Stopping Center business of the Company or a Restricted Subsidiary or a business
reasonably related thereto.
"Resale Restriction Termination Date" means for any Restricted Note
(or beneficial interest therein), two years (or such other period specified in
Rule 144(k)) from the Issue Date or, if any Add-On Notes that are Restricted
Notes have been issued before the Resale Restriction Termination Date for any
Restricted Notes, from the latest such original issue date of such Add-On Notes.
25
"Restricted Note" means any Issue Date Note (or beneficial interest
therein) or any Add-On Note (or beneficial interest therein) not originally
issued and sold pursuant to an effective registration statement under the
Securities Act other than, in each case, any Exchange Note, until such time as:
(i) such Issue Date Note (or beneficial interest therein) or Add-On
Note (or beneficial interest therein) has been transferred pursuant to a
Registration Statement;
(ii) the Resale Restriction Termination Date therefor has passed; or
(iii) the Private Placement Legend therefor has otherwise been removed
pursuant to Section 2.8(e) or, in the case of a beneficial interest in a
Global Note, such beneficial interest has been exchanged for an interest in
a Global Note not bearing a Private Placement Legend.
"Restricted Payment" is defined to mean any of the following:
(a) any dividend or other distribution declared and paid on the
Capital Interests in the Company or on the Capital Interests in any Restricted
Subsidiary of the Company that are held by, or declared and paid to, any Person
other than the Company or a Wholly-Owned Restricted Subsidiary of the Company
(other than dividends, distributions or payments made solely in Qualified
Capital Interests in the Company);
(b) any payment made by the Company or any of its Restricted
Subsidiaries to purchase, redeem, acquire or retire any Capital Interests in the
Company (including the conversion into, or exchange for, Debt, of any Capital
Interests);
(c) any payment made by any Restricted Subsidiary of the Company,
other than to the Company or another Restricted Subsidiary of the Company, to
purchase, redeem, acquire or retire any Capital Interests in a Restricted
Subsidiary (other than payments made with Qualified Capital Interests in the
Company);
(d) any payment made by the Company or any of its Restricted
Subsidiaries (other than a payment made solely in Qualified Capital Interests in
the Company) to redeem, repurchase, defease (including an in substance or legal
defeasance) or otherwise acquire or retire for value (including pursuant to
mandatory repurchase covenants), prior to any scheduled maturity, scheduled
sinking fund or mandatory redemption payment, Debt of either of the Issuers that
is subordinate (whether pursuant to its terms or by operation of law) in right
of payment to the Notes and which was scheduled to mature on or after the
maturity of the Notes;
(e) any Investment by the Company or a Restricted Subsidiary in any
Person, other than a Permitted Investment;
(f) any designation of a Restricted Subsidiary as an Unrestricted
Subsidiary on the basis of the greater of the fair market or book value of such
Subsidiary; and
(g) any advisory fee paid to an Affiliate with respect to a specific
transaction (other than fees that were payable on the Closing Date upon
consummation of the Transactions).
26
"Restricted Subsidiary" means any Subsidiary, at least 75% of the
outstanding Common Interests of which are owned and controlled, directly or
indirectly, by the Company that has not been designated as an "Unrestricted
Subsidiary" in accordance with this Indenture.
"Rule 144" means Rule 144 under the Securities Act (or any successor
rule).
"Rule 144A" means Rule 144A under the Securities Act (or any successor
rule).
"Sale and Leaseback Transaction" means any direct or indirect
arrangement pursuant to which property is sold or transferred by the Company or
a Restricted Subsidiary and is thereafter leased back from the purchaser or
transferee thereof by the Company or a Restricted Subsidiary.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the same
functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" has the meaning set forth in Rule 1-02 of
Regulation S-X under the Securities Act and Exchange Act but shall include any
direct or indirect Restricted Subsidiary of the Company owning one or more
Stopping Centers, but shall not include any Unrestricted Subsidiary.
"Standard & Poor's" means Standard & Poor's Ratings Group and its
successors.
"State Income Tax Rate" means, with respect to any Person, the
weighted average highest marginal state and local income tax (inclusive of
franchise or other taxes in the nature of income taxes) rates applicable to
corporations or to individuals in any state in which such Person does business.
The highest applicable marginal state and local income tax rates of the states
from which the Person derives net income shall be weighted by the ratio of the
Person's net income apportioned to a state by that state to the sum of the
Person's net income apportioned to all states in which such Person is doing
business.
"Stated Maturity," when used with respect to:
(i) any Note or any installment of interest thereon, means the date
specified in such Note as the fixed date on which the principal amount of such
Note or such installment of interest is due and payable; and
(ii) any other Debt or any installment of interest thereon,
means the date specified in the instrument governing such Debt as the fixed date
on which the principal of such Debt or such installment of interest is due and
payable.
"Stopping Centers" means multi-service truck stops or travel plaza
facilities, including "full-sized" and "Petro:2" units and Petro:Lube
maintenance facilities, which provide services and amenities to commercial truck
drivers as well as to other highway motorists and
27
local residents, including without limitation, facilities currently operated by
the Company and its Restricted Subsidiaries and businesses related or ancillary
thereto.
"Subsidiary" means, with respect to any Person, any corporation,
limited or general partnership, trust, association or other business entity of
which an aggregate of at least a majority of the outstanding Capital Interests
therein is, at the time, directly or indirectly, owned by such Person and/or one
or more Subsidiaries of such Person.
"Successor Entity" means a corporation or other entity that succeeds
to and continues the business of the Company.
"Taxable Income" means, with respect to any partner or member of a
Person that is a partnership or substantially similar pass-through entity for
federal income tax purposes, such partner's allocation of taxable income from
such Person for federal income tax purposes inclusive of each item of taxable
gain, loss, income, and deduction required to be taken into account separately
by the partners or members of such Person and taking into account allocations
pursuant to Section 704(c) of the Code. The character of each separately stated
item shall be disregarded for purposes of determining Taxable Income; provided,
that net capital loss, as defined in Section 1222(10) of the Code, shall not be
taken into account in determining Taxable Income.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.3 hereof).
"Transactions" means:
(a) the investment in the Company of equity capital by Volvo
Trucks and Mobil Oil;
(b) the purchase of the Chartwell Interests and the ▇▇▇▇▇▇▇▇▇
Interests by the Company;
(c) the execution of, and consummation of borrowings under, a
Credit Agreement to be entered into by the Operating Partnership and the
Company with BankBoston and a syndicate of lenders;
(d) the amendment of the 10 1/2% Notes Indenture; and
(e) the consummation of the sale of the Units.
"Treasury Rate" means the yield to maturity at the time of computation
of U.S. Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Release H.15 (519) which has become publicly
available at least two business days prior to the Redemption Date (or, if such
statistical release is no longer published, any publicly available source of
similar market data)) closest to the period from the Redemption Date to August
1, 2004; provided, however, that if the period from the Redemption Date to
August 1, 2004, is not equal to the constant maturity of a U.S. Treasury
security for which a weekly average yield is given, the Treasury Rate shall be
obtained by linear interpolation (calculated to
28
the nearest one-twelfth of one year) from the weekly average yields of U.S.
Treasury securities for which such yields are given, except that if the period
from the Redemption Date to August 1, 2004, is less than one year, the weekly
average yield on actually traded U.S. Treasury securities adjusted to a constant
maturity of one year shall be used.
"Trust Officer" when used with respect to the Trustee, means any
officer or assistant officer of the Trustee assigned to the Corporate Trust
Administration department or similar department performing corporate trust work
of the Trustee or any successor to such department or, in the case of a
successor Trustee, any officer of such successor Trustee performing corporate
trust functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"U.S. Government Obligations" means (i) securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are 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, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Volvo Trucks" means Volvo Trucks North America, Inc. and Affiliates.
"Voting Interests" means, with respect to any Person, securities of
any class or classes of Capital Interests in such Person entitling the holders
thereof generally to vote on the election of members of the board of directors
or comparable body of such Person.
"Warrant Agreement" means that certain warrant agreement among Warrant
Holdings, the Company, Sixty Eighty LLC, First Union Capital Markets Corp., CIBC
World Markets Corp. and State Street Bank and Trust Company.
"Warrant Holdings" means Petro Warrant Holdings Corporation, a
Delaware corporation.
"Warrants" means the exchangeable warrants issued by Warrant Holdings
pursuant to the Warrant Agreement.
29
"Wholly-Owned" means, with respect to a Subsidiary, any Subsidiary, at
least 99% of the outstanding voting securities (other than directors' qualifying
shares) of which are owned, directly or indirectly, by the Company.
Section 1.2. Other Definitions.
------------------
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
---- ------------------
"Affiliate Transaction"........................... 4.10
"Agent Members"................................... 2.6
"Authenticating Agent"............................ 2.2
"Bankruptcy Law".................................. 6.1
"Business Day".................................... 10.8
"Covenant Defeasance"............................. 9.3
"Custodian"....................................... 6.1
"Defaulted Interest".............................. Exhibit A
"Discharge"....................................... 9.1
"Event of Default"................................ 6.1
"Excess Proceeds"................................. 4.9
"Exchange Notes".................................. 2.2
"Global Notes".................................... 2.1
"Legal Defeasance"................................ 9.2
"Legal Holiday"................................... 10.8
"Paying Agent".................................... 2.3
"Private Placement Legend"........................ 2.7
"Registrar"....................................... 2.3
"Required Filing Dates"........................... 4.2
"Reinvestment Date"............................... 4.9
"Special Record Date"............................. 2.12
"Specified Period"................................ 4.6
"Surviving Entity"................................ 5.1
"Unrestricted Subsidiary"......................... 4.13
Section 1.3 Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
30
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Issuers or any other
obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings therein assigned to them.
Section 1.4. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) words used herein implying any gender shall apply to every gender;
(6) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or Subdivision,
unless expressly stated otherwise; and
(7) the term "interest" shall include all Additional Interest as
provided in the Registration Rights Agreement for purposes of this Indenture and
the Notes.
ARTICLE II.
THE NOTES
---------
Section 2.1. Form and Dating.
---------------
(a) The Issue Date Notes are being originally offered and sold by the
Issuers pursuant to a purchase agreement, dated July 19, 1999 among the Issuers
and First Union Capital Markets Corp. and CIBC World Markets Corp. and pursuant
to a purchase agreement, dated July 19, 1999 among the Issuers and Chartwell.
The Notes will be issued in fully-registered form without coupons, and only in
denominations of $1,000 and any integral multiple thereof. The
31
Notes and the Trustee's certificate of authentication shall be substantially in
the form of Exhibit A hereto.
---------
(b) The terms and provisions of the Notes, the form of which is in
Exhibit A, shall constitute, and are hereby expressly made, a part of this
---------
Indenture, and, to the extent applicable, the Issuers and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. Except as otherwise expressly permitted in
this Indenture, all Notes shall be identical in all respects. Notwithstanding
any differences among them, all Notes issued under this Indenture shall vote and
consent together on all matters as one class.
(c) The Notes may have notations, legends or endorsements as specified
in Section 2.7 or as otherwise required by law, stock exchange rule or the
-----------
Depository rule or usage. The Issuers and the Trustee shall approve the form of
the Notes and any notation, legend or endorsement on them. Each Note shall be
dated the date of its authentication.
(d) Notes originally offered and sold to QIBs in reliance on Rule 144A
will be issued on the issue date therefor in the form of a permanent Global Note
or in the form of Certificated Notes.
(e) Notes originally offered and sold to Chartwell in reliance on an
exemption from the registration requirements of the Securities Act, will be
issued on the issue date therefor in the form of a single Certificated Note.
Section 2.2. Execution and Authentication.
----------------------------
(a) Two Officers of each Issuer, one of whom shall be the Chairman of
the Board, the President, the Chief Executive Officer or the Chief Financial
Officer, shall sign the Notes for the Issuers by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the
time the Trustee authenticates the Note, the Note shall be valid nevertheless.
(b) A Note shall not be valid until an authorized signatory of the
Trustee manually authenticates the Note. The signature of the Trustee on a Note
shall be conclusive evidence that such Note has been duly and validly
authenticated and issued under this Indenture.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Trustee shall authenticate and make available for
delivery: Notes upon a written order of the Issuers signed by two Officers or by
an Officer and either an Assistant Treasurer or an Assistant Secretary of each
Issuer (the "Issuer Order"). An Issuer Order shall specify the amount of the
------------
Notes to be authenticated and the date on which the original issue of Notes is
to be authenticated.
(d) The Trustee may appoint an agent (the "Authenticating Agent")
--------------------
reasonably acceptable to the Issuers to authenticate the Notes. Unless limited
by the terms of such appointment, any such Authenticating Agent may authenticate
Notes whenever the Trustee
32
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by the Authenticating Agent.
(e) In case the Company:
(i) shall be consolidated with or merged into any other Person,
(ii) or shall convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any Person,
and the Successor Company resulting from such consolidation, or surviving such
merger, or which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article IV, any of the Notes authenticated or
----------
delivered prior to such transaction may, from time to time, at the request of
the Successor Company, be exchanged for other Notes executed in the name of the
Successor Company with such changes in phraseology and form as may be
appropriate, but otherwise identical to the Notes surrendered for such exchange
and of like principal amount; and the Trustee, upon Issuer Order of the
Successor Company, shall authenticate and deliver Notes as specified in such
order for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a Successor Company pursuant to
this Section 2.2 in exchange or substitution for or upon registration of
-----------
transfer of any Notes, such Successor Company, at the option of the Holders but
without expense to them, shall provide for the exchange of all Notes at the time
outstanding for Notes authenticated and delivered in such new name.
Section 2.3. Registrar and Paying Agent.
--------------------------
(a) The Issuers shall maintain an office or agency in the Borough of
Manhattan, City of New York, where Notes may be presented for registration of
transfer or for exchange (the "Registrar"), where Notes may be presented for
---------
payment (the "Paying Agent") and for the service of notices and demands to or
------------
upon the Issuers in respect of the Notes and this Indenture. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Issuers may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
(b) The Issuers shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-Registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Issuers shall
notify the Trustee of the name and address of each such agent. If the Issuers
fail to maintain a Registrar or Paying Agent, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to Section 7.7.
-----------
The Company may act as Paying Agent, Registrar, co-Registrar or transfer agent.
(c) The Issuers initially appoint the Trustee at the principal
corporate trust office of its Affiliate, State Street Bank and Trust Company of
New York, N.A., located at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, in the Borough of
Manhattan, City of New York 10006 (the "Affiliate Trust Office") as Registrar,
----------------------
Paying Agent and agent for service of demands and notices in
33
connection with the Notes and this Indenture, until such time as the Trustee has
resigned or a successor Trustee has been appointed.
Section 2.4. Paying Agent to Hold Money in Trust.
-----------------------------------
The Issuers shall require each Paying Agent (other than the Trustee)
to agree in writing that such Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all money held by such Paying Agent for the payment of
principal of or interest on the Notes and shall notify the Trustee in writing of
any default by the Issuers in making any such payment. If the Company acts as
Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Issuers at any time may require a Paying Agent
(other than the Trustee) to pay all money held by it to the Trustee and to
account for any funds disbursed by such Paying Agent. Upon complying with this
Section 2.4, the Paying Agent (if other than the Company) shall have no further
-----------
liability for the money delivered to the Trustee. Upon any proceeding under any
Bankruptcy Law with respect to the Company or any Affiliate of the Company, if
the Company is then acting as Paying Agent, the Trustee shall replace the
Company as Paying Agent.
Section 2.5. Holder Lists
------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, or to the extent otherwise
required under the TIA, the Issuers shall furnish to the Trustee, in writing at
least seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders.
Section 2.6. Global Note Provisions.
----------------------
(a) Each Global Note initially shall: (i) be registered in the name of
the Depository or the nominee of the Depository, (ii) be delivered to the Note
Custodian, and (iii) bear the appropriate legend, as set forth in Section 2.7
-----------
and Exhibit A. Any Global Note may be represented by more than one certificate.
---------
The aggregate principal amount of each Global Note may from time to time be
increased or decreased by adjustments made on the records of the Note Custodian,
as provided in this Indenture.
(b) Members of, or participants in, the Depository ("Agent Members")
-------------
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository or by the Note Custodian under such Global
Note, and the Depository may be treated by the Issuers, the Trustee, the Paying
Agent and the Registrar and any of their agents as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuers, the Trustee, the Paying Agent or the Registrar
or any of their agents 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 the
Depository governing the exercise of the rights of an owner of a beneficial
interest in any Global Note. The registered Holder of a Global Note may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold
34
interests through Agent Members, to take any action that a Holder is entitled to
take under this Indenture or the Notes.
(c) Except as provided in Section 2.8 and below, owners of beneficial
interests in Global Notes will not be entitled to receive Certificated Notes.
Certificated Notes shall be issued to all owners of beneficial interests in a
Global Note in exchange for such interests if:
(i) the Depository notifies the Company that it is unwilling or unable
to continue as depositary for such Global Note or the Depository ceases to
be a clearing agency registered under the Exchange Act, at a time when the
Depository is required to be so registered in order to act as depositary,
and in each case a successor depositary is not appointed by the Company
within 90 days of such notice, or
(ii) the Company executes and delivers to the Trustee and Registrar an
Officers' Certificate stating that such Global Note shall be so
exchangeable.
In connection with the exchange of an entire Global Note for Certificated Notes
pursuant to this subsection (c), such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Issuers shall execute, and
upon Issuer Order the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of Certificated Notes of
authorized denominations.
(d) In connection with the exchange of a portion of a Certificated
Note for a beneficial interest in a Global Note, the Trustee shall cancel such
Certificated Note, and the Issuers shall execute, and upon Issuer Order the
Trustee shall authenticate and deliver, to the exchanging Holder a new
Certificated Note representing the principal amount not so exchanged.
Section 2.7 Legends.
-------
(a) Each Global Note shall bear the legend specified therefor in
Exhibit A on the face thereof.
---------
(b) Each Restricted Note shall bear the private placement legend
specified therefor in Exhibit A on the face thereof (together with, if
---------
applicable, the legend specified in clause (c) below, the "Private Placement
-----------------
Legend").
------
(c) Each Certificated Note that is a Restricted Note shall bear the
legend specified therefor in Exhibit A on the face thereof.
---------
Section 2.8. Transfer and Exchange.
---------------------
(a) The following provisions shall apply with respect to any proposed
transfer of a Certificated Note (or portion thereof) that is a Restricted Note:
(i) If the Holder of a Certificated Note wishes to deliver such Note
to the Registrar for registration in the name of such Holder, without
transfer, or if the Holder
35
wishes to transfer such Note to the Company or any of its Subsidiaries, the
Registrar shall authenticate and deliver Certificated Notes to such Holder or to
the Company or any of its Subsidiaries, as the case may, (x) upon receipt by the
Registrar of:
(A) such Certificated Note, duly endorsed as provided herein,
(B) instructions from such Holder directing the Registrar to issue one
or more Certificated Notes in the amounts specified to the transferee,
and, if the entire principal amount of such Certificated Note is not
being transferred, to issue one or more Certificated Notes to the
transferor in an amount equal to the principal amount not transferred,
and
(C) a certificate in the form of Exhibit B-1 duly executed by the
-----------
transferor, and
(y) the Registrar shall:
(1) cancel the Certificated Note delivered to it, and
(2) if applicable, issue to the transferor one or more Certificated
Note(s) in accordance with the foregoing;
(ii) If the Holder of a Certificated Note wishes to transfer such
Certificated Note (or a portion thereof) to a QIB pursuant to Rule 144A,
the Registrar shall authenticate and deliver Certificated Notes to the
appropriate QIB (x) upon receipt by the Note Custodian and Registrar of:
(A) such Certificated Note, duly endorsed as provided herein,
(B) instructions from such Holder directing the Registrar to issue one
or more Certificated Notes in the amounts specified to the transferee,
and, if the entire principal amount of such Certificated Note is not
being transferred, to issue one or more Certificated Notes to the
transferor in an amount equal to the principal amount not transferred,
and
(C) a certificate in the form of Exhibit C duly executed by the
---------
transferor, and
(y) the Registrar shall:
(1) cancel the Certificated Note delivered to it, and
(2) if applicable, issue to the transferor one or more Certificated
Note(s) in accordance with the foregoing;
(iii) If the Holder of Certificated Note wishes to transfer such
Certificated Note (or any portion thereof) to an IAI, the Registrar shall
authenticate and deliver Certificated Note(s) to the appropriate IAI(s)
upon receipt by Registrar of:
36
(A) such Certificated Note, duly endorsed as provided herein,
(B) instructions from such Holder directing the Registrar to issue one
or more Certificated Notes in the amounts specified to the transferee
IAI and, if the entire principal amount of such Certificated Note is
not being transferred, to issue one or more Certificated Notes to the
transferor in an amount equal to the principal amount not transferred,
and
(C) a certificate in the form of Exhibit D-1 duly executed by the
-----------
transferee, and
(y) the Registrar shall:
(1) cancel the Certificated Note delivered to it,
(2) if applicable, issue to the transferor one or more Certificated
Note(s) in accordance with the foregoing;
(iv) If the Holder of Certificated Note wishes to transfer such
Certificated Note (or any portion thereof) to an Accredited Investor, the
Registrar shall authenticate and deliver Certificated Note(s) to the
appropriate Accredited Investors upon receipt by Registrar of:
(A) such Certificated Note, duly endorsed as provided herein,
(B) instructions from such Holder directing the Registrar to issue one
or more Certificated Notes in the amounts specified to the transferee
Accredited Investor and, if the entire principal amount of such
Certificated Note is not being transferred, to issue one or more
Certificated Notes to the transferor in an amount equal to the
principal amount not transferred,
(C) a certificate in the form of Exhibit D-2 duly executed by the
-----------
transferee,
(D) an opinion of counsel in form and substance satisfactory to the
Registrar and the Company from an independent law firm of recognized
standing and experienced in matters involving the federal securities
laws, to the effect that such transfer does not violate the Securities
Act; and
(y) the Registrar shall:
(1) cancel the Certificated Note delivered to it,
(2) if applicable, issue to the transferor one or more Certificated
Note(s) in accordance with the foregoing;
(v) If the Holder of a Certificated Note wishes to transfer such
Certificated Note (or a portion thereof) to a Non-U.S. Person pursuant to
Regulation S, the ▇▇▇▇▇▇▇▇▇
▇▇
shall authenticate and deliver Certificated Notes to the appropriate Non-
U.S. Person (x) upon receipt by the Note Custodian and Registrar of:
(A) such Certificated Note, duly endorsed as provided herein,
(B) instructions from the Holder of such Certificated Note directing
the Registrar to issue one or more Certificated Notes in the amounts
specified to the transferee, and, if the entire principal amount of
such Certificated Note is not being transferred, to issue one or more
Certificated Notes to the transferor in an amount equal to the
principal amount not transferred, and
(C) a certificate in the form of Exhibit E from the transferor, and
---------
(y) the Registrar shall:
(1) cancel the Certificated Note delivered to it, and
(2) if applicable, issue to the transferor one or more Certificated
Note(s) in accordance with the foregoing.
(b) Any Person having a beneficial interest in a Global Note may,
upon request and subject to the rules and procedures of the Depository, exchange
such beneficial interest for one or more Certificated Notes. To effect any such
transfer, the Depository or its nominee on behalf of any Person having a
beneficial interest in a Global Note must deliver to the Registrar written
instructions or such other form of instructions as is customary for the
Depository. In addition, in the case of a Restricted Note, the following
additional procedures shall apply:
(i) If such beneficial interest in a Global Note is being transferred
to the Person designated by the Depository as being the beneficial owner or
to the Company or any of its Subsidiaries, (x) upon receipt by the Note
Custodian and the Registrar of:
(A) instructions from the Holder of the Global Note directing the Note
Custodian and Registrar to issue one or more Certificated Notes in the
amounts specified to the Person designated by the Depository as being
the beneficial owner or to the Company or any of its Subsidiaries, as
the case may be, and, debit or cause to be debited an equivalent
amount of beneficial interest in the Global Note, and
(B) a certificate in the form of Exhibit B-2 from the transferor,
-----------
and (y) subject to the rules and procedures of the Depository, the Note
Custodian and Registrar shall:
(A) authenticate and deliver to the Person designated by the
Depository as being the beneficial owner or to the Company or any of
its Subsidiaries, as the case may be, Certificated Note(s) in an
equivalent amount to the beneficial interest in the Global Note being
transferred in accordance with the foregoing, and
38
(B) decrease the Global Note by such amount in accordance with the
foregoing.
(ii) If the owner of a beneficial interest in the Global Note wishes
to transfer such interest (or any portion thereof) to a QIB pursuant to
Rule 144A, (x) upon receipt by the Note Custodian and Registrar of:
(A) instructions from the Holder of the Global Note directing the Note
Custodian and Registrar to issue one or more Certificated Notes in the
amounts specified to the transferee QIB and, debit or cause to be
debited an equivalent amount of beneficial interest in the Global
Note, and
(B) a certificate in the form of Exhibit C from the transferor,
---------
and (y) subject to the rules and procedures of the Depository, the Note
Custodian and Registrar shall:
(A) authenticate and deliver to the QIB transferee Certificated
Note(s) in an equivalent amount to the beneficial interest in the
Global Note being transferred in accordance with the foregoing, and
(B) decrease the Global Note by such amount in accordance with the
foregoing.
(iii) If the owner of a beneficial interest in a Global Note wishes
to transfer such interest (or a portion thereof) to an IAI, (x) upon
receipt by the Note Custodian and Registrar of:
(A) instructions from the Holder of the Global Note directing the Note
Custodian and Registrar to issue one or more Certificated Notes in the
amounts specified to the transferee IAI and, debit or cause to be
debited an equivalent amount of beneficial interest in the Global
Note, and
(B) a certificate in the form of Exhibit D-1 from the IAI transferee,
-----------
and (y) subject to the rules and procedures of the Depository, the Note
Custodian and Registrar shall:
(A) authenticate and deliver to the IAI transferee Certificated
Note(s) in an equivalent amount to the beneficial interest in the
Global Note being transferred in accordance with the foregoing, and
(B) decrease the Global Note by such amount in accordance with the
foregoing.
(iv) If the owner of a beneficial interest in a Global Note wishes to
transfer such interest (or portion thereof) to a Non-U.S. Person pursuant
to Regulation S, (x) upon receipt by the Note Custodian and Registrar of:
39
(A) instructions from the Holder of the Global Note directing the Note
Custodian and Registrar to issue one or more Certificated Notes in the
amounts specified to the transferee and, debit or cause to be debited
an equivalent amount of beneficial interest in the Global Note, and
(B) a certificate in the form of Exhibit E from the transferor,
---------
and (y) subject to the rules and procedures of the Depository, the Note
Custodian and Registrar shall:
(A) authenticate and deliver to the transferee Certificated Note(s) in
an equivalent amount to the beneficial interest in the Global Note
being transferred in accordance with the foregoing, and
(B) decrease the Global Note by such amount in accordance with the
foregoing.
(v) Certificated Notes issued in exchange for a beneficial interest in
a Global Note, pursuant to this Section 2.8(b) shall be registered in such names
and in such authorized denominations as the Depository, pursuant to instructions
from its direct or Indirect Participants or otherwise, shall instruct the
Registrar. The Registrar shall deliver such Certificated Notes to the Persons in
whose names such Notes are so registered. Following any such issuance of
Certificated Notes, the Registrar, shall instruct the Depository to reduce or
cause to be reduced the aggregate principal amount at maturity of the applicable
Global Note to reflect the transfer.
(c) If the holder of a Certificated Note wishes to transfer such Note
(or a portion thereof) to a QIB that wishes to hold such Note in the form
of an interest in the Global Note, (x) upon receipt by the Note Custodian
and Registrar of:
(A) such Certificated Note, duly endorsed as provided herein,
(B) instructions from such Holder directing the Note Custodian and
Registrar to credit or cause to be credited a beneficial interest in
the Global Note equal to the principal amount (or portion thereof) of
such Certificated Note to be transferred, and, if the entire principal
amount of such Certificated Note is not being transferred to issue one
or more certificated Notes to the transferor in an amount equal to the
principal amount not transferred, and
(C) a certificate in the form of Exhibit C duly executed by the
---------
transferor, and
(y) subject to the rules and procedures of the Depository, the Note
Custodian and Registrar shall:
(1) cancel the Certificated Note delivered to it,
(2) increase the Global Note in accordance with the foregoing, and
40
(3) if applicable, issue to the transferor one or more Certificated
Note(s) in accordance with the foregoing;
(d) Other Transfers. Any transfer of Restricted Notes not described
---------------
above (other than a transfer of a beneficial interest in a Global Note that does
not involve an exchange of such interest for a Certificated Note or a beneficial
interest in another Global Note, which must be effected in accordance with
applicable law and the rules and procedures of the Depository, but is not
subject to any procedure required by this Indenture) shall be made only upon
receipt by the Registrar of such opinions of counsel (which opinions shall be in
form and substance satisfactory to the Registrar and the Company and delivered
by independent counsel of recognized standing and experienced in matters
involving the federal securities laws), and such certificates and/or other
information reasonably required by and satisfactory to the Registrar in order,
in each case, to ensure compliance with the Securities Act or in accordance with
Section 2.8(e).
--------------
(e) Use and Removal of Private Placement Legends. Upon the transfer,
--------------------------------------------
exchange or replacement of Certificated Notes (or beneficial interests in a
Global Note) not bearing a Private Placement Legend, the Registrar (and the Note
Custodian, in the case of beneficial interests in a Global Note) shall exchange
such Notes (or beneficial interests) for Certificated Notes (or beneficial
interests in a Global Note) that do not bear a Private Placement Legend. Upon
the transfer, exchange or replacement of Certificated Notes (or beneficial
interests in a Global Note) bearing a Private Placement Legend, the Registrar
(and the Note Custodian, in the case of beneficial interests in a Global Note)
shall deliver only Certificated Notes (or beneficial interests in a Global Note)
that bear a Private Placement Legend unless:
(i) such Notes (or beneficial interests) are exchanged in a
Registered Exchange Offer;
(ii) such Notes (or beneficial interests) are transferred pursuant to
a Registration Statement;
(iii) such Notes (or beneficial interests) are transferred pursuant
to Rule 144 upon delivery to the Registrar of a certificate of the
transferor in the form of Exhibit F and an Opinion of Counsel reasonably
---------
satisfactory to the Registrar;
(iv) such Notes (or beneficial interests) are transferred, replaced
or exchanged after the Resale Restriction Termination Date therefor; or
(v) in connection with such transfer, exchange or replacement the
Registrar shall have received an Opinion of Counsel and other evidence
reasonably satisfactory to it to the effect that neither such Private
Placement Legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
The Private Placement Legend on any Note shall be removed at the request of the
Holder on or after the Resale Restriction Termination Date therefor. The Holder
of a Global Note may exchange an interest therein for an equivalent interest in
a Global Note not bearing a Private
41
Placement Legend upon transfer of such interest pursuant to any clauses (i)-(v)
above. The Company shall deliver to the Trustee an Officers' Certificate
promptly upon effectiveness, withdrawal or suspension of any Registration
Statement.
(f) Consolidation of Global Notes. If a Global Note not bearing a
-----------------------------
Private Placement Legend is outstanding at the time of a Registered Exchange
Offer, any interests in a Global Note bearing a Private Placement Legend
exchanged in such Registered Exchange Offer shall be exchanged for interests in
such outstanding Global Note; and
(g) Retention of Documents. The Registrar shall retain copies of all
----------------------
letters, notices and other written communications received pursuant to this
Article II. The Issuers shall have the right to inspect and make copies of all
----------
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
(h) Execution, Authentication of Notes, etc.
----------------------------------------
(i) Subject to the other provisions of this Section 2.8, when Notes
-----------
are presented to the Registrar or a co-Registrar with a request to register
the transfer of such Notes or to exchange such Notes for an equal principal
amount of Notes of other authorized denominations, the Registrar or co-
Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; provided that any Notes
--------
presented or surrendered for registration of transfer or exchange shall be
duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Registrar or co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit
registrations of transfers and exchanges and subject to the other terms and
conditions of this Article II, the Company will execute and upon Issuer
----------
Order the Trustee will authenticate Certificated Notes and Global Notes at
the Registrar's or co-Registrar's request. In accordance with the
Registration Rights Agreement, the Issuers will execute and upon Issuer
Order the Trustee will authenticate Exchange Notes in exchange for Issue
Date Notes.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Issuers may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charges payable upon exchange or
transfer pursuant to a Registered Exchange Offer, or Section 4.9, Section
4.18, Section 5.1 or Section 9.5).
(iii) The Registrar or co-Registrar shall not be required to register
the transfer of or exchange of any Note for a period beginning: (1) 15
days before the mailing of a notice of an offer to repurchase or redeem
Notes and ending at the close of business on the day of such mailing or (2)
15 days before an Interest Payment Date and ending on such Interest Payment
Date.
(iv) Prior to the due presentation for registration of transfer of
any Note, the Issuers, the Trustee, the Paying Agent, the Registrar or any
co-Registrar may deem and
42
treat the person in whose name a Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Note and for all other purposes whatsoever, whether or not
such Note is overdue, and none of the Issuers, the Trustee, the Paying
Agent, the Registrar or any co-Registrar shall be affected by notice to the
contrary.
(v) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Notes surrendered upon
such transfer or exchange.
(i) No Obligation of the Trustee.
----------------------------
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of interest in a Global Note, a member of, or a
participant in, the Depository or other Person with respect to the accuracy
of the records of the Depository or its nominee or of any participant or
member thereof, with respect to any ownership interest in the Notes or with
respect to the delivery to any participant, member, beneficial owner or
other Person (other than the Depository) of any notice (including any
notice of redemption) or the payment of any amount or delivery of any Notes
(or other security or property) under or with respect to such Notes. All
notices and communications to be given to the Holders and all payments to
be made to Holders in respect of the Notes shall be given or made only to
or upon the order of the registered Holders (which shall be the Depository
or its nominee in the case of a Global Note). The Trustee may rely and
shall be fully protected in relying upon information furnished by the
Depository with respect to its members, participants and any beneficial
owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among the Depository participants, members or beneficial owners in any
Global Note) other than to require 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 2.9. Mutilated, Destroyed, Lost or Stolen Notes.
------------------------------------------
(a) If a mutilated Note is surrendered to the Registrar or if the
Holder of a Note claims that the Note has been lost, destroyed or stolen, the
Issuers shall execute and upon Issuer Order the Trustee shall authenticate a
replacement Note if the requirements of Section 8-405 of the Uniform Commercial
Code are met and the Holder satisfies any other reasonable requirements of the
Trustee. If required by the Trustee or the Issuers, such Holder shall furnish
an affidavit of loss and indemnity bond sufficient in the judgment of the
Issuers and the Trustee to protect the Issuers, the Trustee, the Paying Agent,
the Registrar and any co-Registrar from any loss that any of them may suffer if
a Note is replaced, and, in the absence of notice to the Issuers or the Trustee
that such Note has been acquired by a bona fide purchaser, the Issuers shall
execute and upon Issuer Order the Trustee shall authenticate and make available
43
for delivery, in exchange for any such mutilated Note or in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
(b) Upon the issuance of any new Note under this Section 2.9, the
-----------
Issuers may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
(c) Every new Note issued pursuant to this Section in exchange for any
mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall
constitute an original additional contractual obligation of the Issuers and any
other obligor upon the Notes, whether or not the mutilated, destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
Section 2.10. Temporary Notes.
---------------
Until definitive Notes are ready for delivery, the Issuers may execute
and upon Issuer Order the Trustee will authenticate temporary Notes. Temporary
Notes will be substantially in the form of definitive Notes but may have
variations that the Issuers consider appropriate for temporary Notes. Without
unreasonable delay, the Issuers will prepare and execute and upon Issuer Order
the Trustee will authenticate definitive Notes. After the preparation of
definitive Notes, the temporary Notes will be exchangeable for definitive Notes
representing an equal principal amount upon surrender of the temporary Notes at
any office or agency maintained by the Company for that purpose and such
exchange shall be without charge to the Holder. Until so exchanged, the Holder
of temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as a Holder of definitive Notes.
Section 2.11. Cancellation.
------------
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel and return to the Issuers all Notes
surrendered for registration of transfer, exchange or payment. The Issuers may
not issue new Notes to replace Notes that have been paid or delivered to the
Trustee for cancellation for any reason other than in connection with a transfer
or exchange.
Section 2.12. Defaulted Interest.
------------------
When any installment of interest becomes Defaulted Interest (as
defined in the form of Note), such installment shall forthwith cease to be
payable to the Holders in whose names the Notes were registered on the record
date applicable to such installment of interest. Defaulted Interest, and any
interest payable on such Defaulted Interest, may be paid by the Issuers, at
their election, as provided in clause (a) or (b) below.
44
(a) The Issuers may elect to make payment of any Defaulted Interest,
and any interest payable on such Defaulted Interest, to the Holders in whose
names the Notes are registered at the close of business on a special record date
for the payment of such Defaulted Interest (a "Special Record Date"), which
-------------------
shall be fixed in the following manner. The Issuers shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on the Notes and
the date of the proposed payment, and at the same time the Issuers shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Holders entitled to such Defaulted Interest as provided in this clause (a).
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest, which shall be not more than 15 calendar days and not less
than ten calendar days prior to the date of the proposed payment and not less
than ten calendar days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Issuers of such Special
Record Date and, in the name and at the expense of the Issuers, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be sent, first-class mail, postage prepaid, to each Holder at
such Holder's address as it appears in the registration books of the Registrar,
not less than ten calendar days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Holders in whose names the Notes are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (b); or
(b) The Issuers may make payment of any Defaulted Interest, and any
interest payable on such Defaulted Interest, on the Notes in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Issuers to the Trustee of the proposed
payment pursuant to this clause (b), such manner of payment shall be deemed
practicable by the Trustee.
Section 2.13. Add-On Notes.
------------
The Issuers may, from time to time, subject to compliance with any
other applicable provisions of this Indenture, without the consent of the
Holders, create and issue pursuant to this Indenture additional notes ("Add-On
------
Notes") having terms and conditions set forth in Exhibit A identical to those of
----- ---------
the other outstanding Notes, except that Add-On Notes:
(i) may have a different issue date from other outstanding Notes;
(ii) may have a different amount of interest payable on the first
Interest Payment Date after issuance than is payable on other outstanding
Notes;
(iii) may have terms specified in the Add-On Note Board Resolution or
Add-On Note Supplemental Indenture for such Add-On Notes making appropriate
adjustments to this Article II and Exhibit A (and related definitions)
---------- ---------
applicable to such Add-On Notes in order to conform to and ensure
compliance with the Securities Act (or other applicable securities laws)
and any registration rights or similar agreement applicable to such Add-
45
On Notes, which are not adverse in any material respect to the Trustee or
the Holder of any outstanding Notes (other than such Add-On Notes); and
(iv) may be entitled to additional interest as contemplated in Section
-------
2.14 not applicable to other outstanding Notes and may not be entitled to
----
such additional interest applicable to other outstanding Notes.
Section 2.14. Additional Amounts Under Registration Rights Agreements.
-------------------------------------------------------
Under certain circumstances, the Issuers may be obligated to pay the
Damage Amount to Holders, all as and to the extent set forth in the Registration
Rights Agreement or any registration rights agreement applicable to Add-On
Notes. The terms thereof are hereby incorporated herein by reference and such
additional interest is deemed to be interest for purposes of this Indenture.
ARTICLE III.
REDEMPTION
----------
Section 3.1. Notices to Trustee.
------------------
If the Issuers elect to redeem Notes pursuant to Section 3.7 hereof,
(i) at least 60 days prior to the Redemption Date in the case of a partial
redemption, (ii) at least 45 days prior to the Redemption Date in the case of a
total redemption or (iii) during such other period as the Trustee may agree to
in writing, the Issuers shall notify the Trustee in writing of the Redemption
Date, the principal amount of Notes to be redeemed and the Redemption Price, and
deliver to the Trustee an Officers' Certificate stating that such redemption
will comply with the conditions contained in Section 3.7 hereof, as appropriate.
Section 3.2. Selection by Trustee of Notes to Be Redeemed.
--------------------------------------------
In the event that fewer than all of the Notes are to be redeemed, the
Trustee shall select the Notes to be redeemed, if the Notes are listed on a
national securities exchange, in accordance with the rules of such exchange or,
if the Notes are not so listed, by lot, pro rata or by such other method as it
shall deem fair and reasonable. The Trustee shall promptly notify the Issuers
of the Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed. The Trustee
may select for redemption portions of the principal of the Notes that have
denominations larger than $1,000. Notes and portions thereof the Trustee
selects shall be redeemed in amounts of $1,000 or whole multiples of $1,000.
For all purposes of this Indenture unless the context otherwise requires,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.3. Notice of Redemption.
--------------------
At least 30 days, but no more than 60 days, before a Redemption Date,
the Issuers shall mail, or cause to be mailed, a notice of redemption by first-
class mail to each Holder of
46
Notes to be redeemed at his or her last address as the same appears on the
registry books maintained by the Registrar pursuant to Section 2.3 hereof.
The notice shall identify the Notes to be redeemed (including the
CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption Date
and upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(6) that unless the Issuers default in making the redemption payment,
Accreted Value will cease to accrete or interest will cease to accrue, as the
case may be, on Notes or portions thereof called for redemption on and after the
Redemption Date;
(7) the paragraph of Section 3.7 hereof pursuant to which the Notes
called for redemption are being redeemed; and
(8) the aggregate principal amount of Notes that are being redeemed.
At the request of the Issuers, the Trustee shall give the notice of redemption
in the name of the Issuers and at the sole expense of the Issuers.
Section 3.4. Effect of Notice of Redemption.
------------------------------
Once the notice of redemption described in Section 3.3 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price, plus, in the case of redemptions occurring on or after
August 1, 2004, interest accrued to the Redemption Date. Upon surrender to the
Paying Agent, such Notes shall be paid at the Redemption Price, plus, in the
case of redemptions occurring on or after August 1, 2004, interest accrued to
the Redemption Date; provided, that if the Redemption Date is after a regular
interest payment record date and on or prior to the Interest Payment Date, any
accrued interest shall be payable to the Holder of the redeemed Notes registered
on the relevant record date, and provided, further, that if a Redemption Date is
a Legal Holiday, payment shall be made on the next succeeding Business Day and
no Accreted Value shall accrete and no interest shall accrue for the period from
such Redemption Date to such succeeding Business Day. Failure to give notice or
any defect in the notice to any Holder shall not affect the validity of the
notice to any other Holder.
47
Section 3.5. Deposit of Redemption Price.
---------------------------
On or prior to 10:00 A.M., New York City time, on each Redemption
Date, the Issuers shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the Redemption Price of, and accrued and unpaid
interest to the Redemption Date in the case of redemptions occurring on or after
August 1, 2004, on all Notes to be redeemed on that date other than Notes or
portions thereof called for redemption on that date which have been delivered by
the Issuers to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
Redemption Price of, and accrued and unpaid interest to the Redemption Date in
the case of redemptions occurring on or after August 1, 2004, on Notes called
for redemption shall have been made available in accordance with the preceding
paragraph and payment thereof is not prohibited pursuant to the terms of this
Indenture, the Notes called for redemption will cease to accrete Accreted Value
or to accrue interest, as the case may be, and the only right of the Holders of
such Notes will be to receive payment of the Redemption Price of and, subject to
the first proviso in Section 3.4, accrued interest to the Redemption Date in the
case of redemptions occurring on or after August 1, 2004, on such Notes to the
Redemption Date. If any Note called for redemption shall not be so paid,
Accreted Value will accrete or interest will be paid, from the Redemption Date
until such redemption payment is made, on the unpaid Redemption Price of the
Note and any Accreted Value or interest not paid on such unpaid amount, in each
case, at the rate and in the manner provided in the Notes.
Section 3.6. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for a Holder a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
Section 3.7. Optional Redemption.
-------------------
(a) The Issuers may redeem the Notes, at the option of the Issuers, in
whole or in part, at any time upon not less than 30 nor more than 60 days'
notice at a Redemption Price equal to:
(i) if the Redemption Date is prior to August 1, 2004, the Accreted
Value of the Notes, plus the Make-Whole Premium, as of the Redemption Date; or
(ii) if the Redemption Date is on or after August 1, 2004, the
following Redemption Prices (expressed as percentages of principal amount at
Stated Maturity) set forth below, plus accrued and unpaid interest, if any, to
the Redemption Date (subject to the right of Holders of record on the relevant
regular record date to receive interest due on an interest payment date that is
on or prior to the Redemption Date), if redeemed during the 12 month period
beginning on August 1, of the years indicated:
48
YEAR Redemption Price
2004 107.500%
2005 105.000%
2006 102.500%
2007 and thereafter 100.000%
(b) In addition to the foregoing, prior to August 1, 2002, the Issuers
may, with the net proceeds of one or more Public Equity Offerings of Qualified
Capital Interests in either the Issuer or a Successor Entity, redeem all, but
not less than all, of the aggregate principal amount of the outstanding Notes at
a Redemption Price equal to 115% of the Accreted Value thereof; provided that
any such redemption occurs within 90 days following the closing of any such
Public Equity Offering.
ARTICLE IV.
COVENANTS
---------
Section 4.1. Payment of Notes.
----------------
The Issuers shall pay or cause to be paid the principal, Redemption
Price or Purchase Price of, and Accreted Value or accrued interest, as the case
may be (which shall include any Damage Amount as provided in the Registration
Rights Agreement), on, the Notes on the dates and in the manner provided in the
Notes and this Indenture. An installment of principal, Redemption Price or
Purchase Price of, or Accreted Value or accrued interest on, the Notes shall be
considered paid on the date it is due if the Trustee or a Paying Agent holds on
that date money designated for and sufficient to pay such installment. The
Issuers shall pay interest on overdue principal, Redemption Price and Purchase
Price (including post-petition interest in a proceeding under any Bankruptcy
Law) and overdue interest, to the extent lawful, at the rate specified in the
Notes.
Section 4.2. SEC Reports.
-----------
(a) Whether or not the Issuers are subject to Section 13(a) or 15(d)
of the Exchange Act, or any successor provision thereto, the Issuers will, to
the extent accepted by the SEC and not prohibited under the Exchange Act, file
with the SEC the annual reports, quarterly reports and other documents which the
Issuers would have been required to file with the SEC pursuant to such Section
13(a) or 15(d) or any successor provision thereto if the Issuers were subject
thereto, such documents to be filed with the SEC on or prior to the respective
dates (the "Required Filing Dates") by which the Issuers would have been
required to file them. The Issuers will also, in any event, (i) within 15 days
of each Required Filing Date (A) transmit by mail to all Holders, as their names
and addresses appear in the security register maintained by the Registrar,
without cost to such Holders, and (B) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Issuers would have been
required to file with the SEC pursuant to Section 13(a) or 15(d) of the Exchange
Act or any successor provisions
49
thereto if the Issuers were subject thereto and (ii) if filing such documents by
the Issuers with the SEC is not accepted by the SEC or is prohibited under the
Exchange Act, promptly upon written request, supply copies of such documents to
any prospective Holder.
(b) The Issuers will, upon request, provide to any Holder of Notes or
any prospective transferee of any such Holder any information concerning the
Issuers (including financial statements) necessary in order to permit such
Holder to sell or transfer Notes in compliance with Rule 144A under the
Securities Act; provided, however, that the Issuers shall not be required to
furnish such information in connection with any request made on or after the
date which is two years from the later of (i) the date such Note (or any
predecessor Note) was acquired from the Issuers or (ii) the date such Note (or
any predecessor Note) was last acquired from an "affiliate" of the Issuers
within the meaning of Rule 144 under the Securities Act.
Section 4.3. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Issuers covenant (to the extent that they may lawfully do so) that
they will not at any time insist upon, or plead (as a defense or otherwise) or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Issuers from paying all or any portion of the principal, Redemption Price or
Purchase Price of, and Accreted Value or accrued interest on, the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture and (to the
extent that they may lawfully do so) the Issuers hereby expressly waive all
benefit or advantage of any such law, and covenant that they will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Section 4.4. Compliance Certificate.
----------------------
(a) The Issuers shall deliver to the Trustee, within 100 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during such fiscal year has
been made under the supervision of the signing Officers with a view to
determining whether each of the Issuers 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 his or her knowledge
each of the Issuers 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 or such Defaults
or Events of Default of which he or she may have knowledge and what action the
Issuers are taking or propose to take with respect thereto) and that to the best
of his or her knowledge no event has occurred and remains in existence by reason
of which payments on account of the principal, Redemption Price or Purchase
Price of, and Accreted Value or accrued interest on, the Notes are prohibited
or, if such event has occurred, a description of the event and what action each
of the Issuers is taking or proposes to take with respect thereto.
(b) So long as (and to the extent) not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end
50
financial statements delivered pursuant to Section 4.2 above shall be
accompanied by a written statement of each Issuer's independent public
accountants (who 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 which would lead them to believe that the
Issuer has violated any provisions of this Article IV or Article V of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly for any failure to obtain knowledge of any such
violation.
(c) The Issuers will, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Issuers are taking or propose to take with
respect thereto.
Section 4.5. Taxes.
-----
The Company shall, and shall cause each of its Subsidiaries to, pay
prior to delinquency all material taxes, assessments, and governmental levies
except as contested in good faith and by appropriate proceedings.
The Issuers shall provide to the Trustee within 30 days from the Issue
Date, any and all information required by the Trustee to enable it to complete
and file with the IRS 1099 original issue discount forms.
Section 4.6. Limitation on Debt.
------------------
(a) Holdings will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Debt (including Acquired Debt), unless, immediately
after giving effect to the Incurrence of such Debt and the receipt and
contemporaneous application of the proceeds therefrom,
(i) The Interest Coverage Ratio of the Company and its Restricted
Subsidiaries for the last four fiscal quarters for which financial information
is available at the date of determination (the "Specified Period"), determined
on a pro forma basis as if any such Debt, and any other Debt Incurred since the
beginning of the Specified Period, had been Incurred and the proceeds thereof
had been applied at the beginning of the Specified Period, and any other Debt
repaid since the beginning of the Specified Period had been repaid at the
beginning of the Specified Period, would be (1) at any time prior to August 1,
2001, greater than 1.75:1 and (2) at anytime on or after August 1, 2001, greater
than 2.0:1; and
(ii) no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior
to the date of determination, the Company or any of its Restricted Subsidiaries
shall have engaged in any Asset Sale or acquisition or shall have designated any
Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted
Subsidiary to be a Restricted Subsidiary, EBITDA, as defined,
51
and Adjusted Interest Expense for the Specified Period shall be calculated on a
pro forma basis giving effect to such Asset Sale or acquisition or designation,
as the case may be, and the application of any proceeds therefrom as if such
Asset Sale or acquisition or designation had occurred on the first day of the
Specified Period.
(c) If the Debt which is the subject of a determination under this
provision is Acquired Debt, or Debt Incurred in connection with the simultaneous
acquisition of any Person, business, property or assets, or Debt of an
Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such
ratio shall be determined by giving effect (on a pro forma basis, as if the
transaction had occurred at the beginning of the Specified Period) to both the
Incurrence or assumption of such Acquired Debt or such other Debt by the Company
or any of its Restricted Subsidiaries and the inclusion in EBITDA, of the EBITDA
of the acquired Person, business, property or assets or redesignated Subsidiary.
(d) Notwithstanding the first paragraph above, the Company and its
Restricted Subsidiaries may Incur Permitted Debt.
(e) The Incurrence of Debt solely to develop a Stopping Center shall
be determined in accordance with the definition of "Incur" set forth in Section
1.1. The accretion of original issue discount (and any accruals of interest or
payment of interest in Add-On Notes) on the Notes shall not be deemed an
incurrence of Debt for purposes of this covenant.
Section 4.7. Limitation on Issuance and Sale of Capital Interests in
-------------------------------------------------------
Restricted Subsidiaries.
-----------------------
The Company will not permit any Restricted Subsidiary of the Company
to issue any Capital Interest (other than any required directors' qualifying
shares) to any Person other than the Company or a Wholly-Owned Restricted
Subsidiary thereof. The Company will not sell, and will not permit any of its
Restricted Subsidiaries to sell, any Capital Interests in any Restricted
Subsidiary to any Person other than the Company or a Wholly-Owned Restricted
Subsidiary unless all such Capital Interests owned by the Company and its
Restricted Subsidiaries are sold in one or more contemporaneous transactions;
provided, however, that the Company will not sell any Capital Interest in PFC to
any Person other than a Wholly-Owned Restricted Subsidiary.
Section 4.8. Limitation on Restricted Payments.
---------------------------------
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment unless, at
the time of and after giving effect to the proposed Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or will occur as a consequence thereof;
(ii) after giving effect to such Restricted Payment on a pro
forma basis, the Company would be permitted to Incur at least $1.00 of
additional Debt (other than
52
Permitted Debt) pursuant to the provisions described in paragraph (a) of
Section 4.6 hereof; and
(iii) after giving effect to such Restricted Payment on a pro
forma basis, the aggregate amount expended or declared for all Restricted
Payments made on or after the date of initial issuance of the Notes shall
not exceed the sum (without duplication) of:
(1) 50% of the Adjusted Net Income (or, if Adjusted Net
Income shall be a deficit, minus 100% of such deficit) of the Company
accrued on a cumulative basis during the period (taken as one accounting
period) beginning on the first day of the fiscal quarter in which the
initial issuance of the Notes occurred and ending on the last day of the
fiscal quarter immediately preceding the date of such proposed Restricted
Payment, plus
(2) 100% of the aggregate net cash proceeds received by the
Company subsequent to the initial issuance of the Notes from the issuance
and sale (other than to a Restricted Subsidiary) of its Qualified Capital
Interests, including Qualified Capital Interests issued upon the conversion
of Debt or Redeemable Capital Interests of the Company issued after the
initial issuance of the Notes, and from the exercise of options, warrants
or other rights to purchase such Qualified Capital Interests, plus
(3) 100% of the net reduction in Investments (other than
Permitted Investments), subsequent to the date of the initial issuance of
the Notes, in any Person, resulting from payments of interest on Debt,
dividends, repayments of loans or advances (but only to the extent such
interest, dividends or repayments are not included in the calculation of
Adjusted Net Income), in each case to the Company or any Restricted
Subsidiary from any Person (including, without limitation, from
Unrestricted Subsidiaries) or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries in accordance with this Indenture,
not to exceed in the case of any Person the amount of Investments
previously made by the Company or any Restricted Subsidiary in such Person,
plus
(4) $5,000,000.
(b) Notwithstanding paragraph (a) of this Section 4.8, the Company
and its Restricted Subsidiaries may take the following actions, provided that
with respect to clauses (ii), (iii), (iv), (vi) and (vii) below, immediately
after giving effect to such action, no Default or Event of Default has occurred
and is continuing:
(i) the payment of any dividend on Capital Interests in the
Company or a Restricted Subsidiary within 60 days after declaration thereof
if at the declaration date such payment would not have been prohibited by
the foregoing provisions of this covenant;
(ii) the retirement of any Qualified Capital Interests of the
Company or any Restricted Subsidiary by conversion into, or by or in
exchange for, Qualified Capital
53
Interests, or out of net cash proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Company) of other Qualified Capital
Interests of the Company;
(iii) the redemption, defeasance, repurchase or acquisition or
retirement for value of any Debt of the Company that is subordinate in
right of payment to the Notes out of the net cash proceeds of a
substantially concurrent issue and sale (other than to a Restricted
Subsidiary) of new subordinated Debt of the Company incurred in accordance
with this Indenture;
(iv) payments due under the Permitted Affiliate Agreements
that would otherwise constitute Restricted Payments (other than pursuant to
clause (v) below);
(v) cash distributions by the Company to its partners on its
Capital Interests, for so long as it is organized as a partnership or other
substantially similar pass-through entity for federal income tax purposes,
in aggregate amounts not exceeding the aggregate amount of Permitted Tax
Distributions accrued after December 31, 1997;
(vi) the purchase, redemption, retirement or other acquisition
for value of Capital Interests in the Company held by employees or former
employees of the Company or any Restricted Subsidiary (or their estates or
beneficiaries under their estates) upon death, disability, retirement,
termination of employment or pursuant to the terms of any agreement under
which such Capital Interests were issued; provided that the aggregate cash
consideration paid for such purchase, redemption, retirement or other
acquisition of such Capital Interests does not exceed $1,000,000 in any
fiscal year;
(vii) payments that would otherwise constitute Restricted
Payments, not to exceed $100,000 in any fiscal year;
(viii) the purchase on the Issue Date of the Chartwell Interests
and the ▇▇▇▇▇▇▇▇▇ Interests;
(ix) the purchase of any Warrants; and
(x) the conversion of employee options issued under the
Option Plan into rights under the Phantom Option Plan.
(c) The actions described in clauses (i), (ii), (iv), (vi) and (vii)
of paragraph (b) of this Section 4.8 shall reduce, but without duplication, the
amount that would otherwise be available for Restricted Payments under clause
(iii) of paragraph (a) of this Section 4.8.
(d) If the Company makes a Restricted Payment which, at the time of
the making of such Restricted Payment, in the good faith determination of the
Board of Directors of the Company, would be permitted under the requirements of
this Indenture, such Restricted Payment shall be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustment made in
good faith to the Company's financial statements affecting Adjusted Net Income.
54
(e) If any Person in which an Investment is made, which Investment
constitutes a Restricted Payment when made, thereafter becomes a Restricted
Subsidiary in accordance with this Indenture, all such Investments previously
made in such Person shall no longer be counted as Restricted Payments for
purposes of calculating the aggregate amount of Restricted Payments pursuant to
clause (iii) of paragraph (a) of this Section 4.8, in each case to the extent
such Investments would otherwise be so counted.
(f) If the Company or a Restricted Subsidiary transfers, conveys,
sells, leases or otherwise disposes of an Investment in accordance with Section
4.9 hereof, which Investment was originally included in the aggregate amount
expended or declared for all Restricted Payments pursuant to clause (c) of the
definition of "Restricted Payments," the aggregate amount expended or declared
for all Restricted Payments shall be reduced by the lesser of:
(i) the Net Cash Proceeds from the transfer, conveyance, sale,
lease or other disposition of such Investment or
(ii) the amount of the original Investment,
in each case, to the extent originally included in the aggregate amount expended
or declared for all Restricted Payments pursuant to clause (c) of the definition
of "Restricted Payments."
(g) For purposes of this Section 4.8, if a particular Restricted
Payment involves a non-cash payment, including a distribution of assets, then
such Restricted Payment shall be deemed to be an amount equal to the cash
portion of such Restricted Payment, if any, plus an amount equal to the Fair
Market Value of the non-cash portion of such Restricted Payment.
Section 4.9. Limitation on Asset Sales.
-------------------------
(a) The Company will not consummate an Asset Sale unless the
Company:
(i) receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the property or assets sold or otherwise
disposed of;
(ii) at least 85% of the consideration received by the Company for
such property or assets consists of cash or Eligible Cash Equivalents; provided
that the amount of any liabilities (as shown on the Company' most recent balance
sheet) of the Company (other than contingent liabilities and liabilities that
are by their terms subordinate to the Notes) that are assumed or forgiven by the
transferee of any such assets will be deemed to be cash for the purposes of this
clause (ii); and
(iii) the Net Cash Proceeds received by the Company are applied, to
the extent the Company or any Restricted Subsidiary elects or is required,
(A) to repay or purchase and permanently reduce outstanding Debt
of a Restricted Subsidiary, and to permanently reduce any commitments in
respect thereof, provided, however, that such repayment and commitment
reduction occurs within 270 days following the receipt of such Net Cash
Proceeds; or
55
(B) to an investment in Replacement Assets, provided, however,
that such investment occurs or the Company or such Restricted Subsidiary
enters into contractual commitments to make such investment, subject only
to customary conditions (other than the obtaining of financing), on or
prior to the 270th day following receipt of such Net Cash Proceeds (the
"Reinvestment Date") and Net Cash Proceeds contractually committed are so
applied within 365 days following the receipt of such Net Cash Proceeds.
Notwithstanding any provision of this Section 4.9, Asset Swaps and Fuel Hedging
Obligations entered into in the ordinary course of business shall not be subject
to clause (ii) of the immediately preceding sentence.
(b) Any Net Cash Proceeds from any Asset Sale that are not used to
reinvest in Replacement Assets and/or repay Debt of a Restricted Subsidiary
shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds
$10,000,000, the Company shall make an Offer to Purchase, from all Holders,
Notes:
(x) having an aggregate Accreted Value as of the Purchase Date, if
the Purchase Date is on or prior to August 1, 2004, or
(y) in an aggregate principal amount at Stated Maturity, if the
Purchase Date is after August 1, 2004,
in either case equal to the Excess Proceeds, at a Purchase Price in cash equal
to:
(x) 100% of the Accreted Value thereof, if the Purchase Date is on
or prior to August 1, 2004, or
(y) 100% of the principal amount thereof, together with accrued
interest, if any, to the Purchase Date, if the Purchase Date is after August 1,
2004.
On or before the Purchase Date, the Trustee shall, to the extent lawful, accept
for payment, on a pro rata basis or by such other method as the Trustee shall
deem fair and appropriate to the extent necessary, Notes or portions thereof or
beneficial interests under a Global Note properly tendered pursuant to the Offer
to Purchase, deposit with the Paying Agent U.S. legal tender sufficient to pay
the purchase price plus accrued interest, if any, on the Notes to be purchased
and deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Issuers in accordance with the
terms of this Section 4.9. The Paying Agent shall promptly mail or deliver to
each tendering Holder an amount equal to the Purchase Price of the Note tendered
by such Holder and accepted by the Company for purchase (which payment shall, in
the case of the Holders of interests in the Global Note, be through the
facilities of the Depository), and the Issuers shall promptly issue a new Note,
and the Trustee shall authenticate and mail or make available for delivery such
new Note to such Holder equal in principal amount to any unpurchased portion of
the Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Issuers to the Holder thereof. the Company will publicly
announce
56
the results of the Offer to Purchase on the Purchase Date. To the extent that
any amount of Excess Proceeds remains after completion of such Offer to
Purchase, the Company may use such remaining amount for general corporate
purposes, and the amount of Excess Proceeds shall be reset to zero.
(d) the Company will comply, to the extent applicable, with the
requirements of Rule 14e-1 under the Exchange Act and other securities laws or
regulations in the event that an Offer to Purchase is required under the
circumstances described in this Section 4.9.
Section 4.10. Limitation on Transactions with Affiliates.
------------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, conduct any business or enter into or
permit to exist any transaction or series of related transactions (including,
but not limited to, the purchase, sale or exchange of property, the making of
any Investment, the giving of any Guarantee or the rendering of any service)
with any Unrestricted Subsidiary or any Affiliate of the Company or any
Restricted Subsidiary other than transactions solely among any of the Company
and its Restricted Subsidiaries (an "Affiliate Transaction") unless:
(i) such business, transaction or series of related transactions is
on terms no less favorable to the Company or such Restricted Subsidiary than
those that could be obtained in a comparable arm's length transaction between
unaffiliated parties; and
(ii) with respect to an Affiliate Transaction involving an amount or
having a value in excess of $500,000, the Company delivers to the Trustee an
officers' certificate stating that such business, transaction or series of
related transactions complies with clause (i) above.
In the case of an Affiliate Transaction involving an amount or having a value in
excess of $2,000,000 but less than or equal to $5,000,000, the Company must
obtain a resolution of the Board of Directors (including a majority of
Disinterested Directors, if any) certifying that such Affiliate Transaction
complies with clause (i) above. In the case of an Affiliate Transaction
involving an amount or having a value in excess of $5,000,000, the Company must
obtain a written opinion of a nationally recognized investment banking firm or
other expert stating that the transaction is fair to the Company or such
Restricted Subsidiary from a financial point of view. The foregoing limitation
does not limit, and shall not apply to,
(1) any transaction or series of related transactions pursuant to
the terms of the Permitted Affiliate Agreements,
(2) cash distributions permitted under clause (v) of Section 4.8(b),
relating to Permitted Tax Distributions,
(3) the payment of reasonable and customary fees to members of the
Board of Directors of the Company or a Restricted Subsidiary who are outside
directors,
(4) the payment of reasonable and customary compensation to officers
and employees of the Company or any Restricted Subsidiary as determined by the
Board of Directors thereof in good faith,
57
(5) any transaction pursuant to an agreement, arrangement or
understanding existing on the Issue Date and described in the Offering
Memorandum and any amendment to such agreements, arrangements or understandings
that is not adverse to the Company, and
(6) any transaction, approved by the Board of Directors of the
Company, with an officer or director of the Company or of any Subsidiary in his
or her capacity as officer or director entered into in the ordinary course of
business.
the Company may in addition pay advisory fees to an Affiliate of the Company
with respect to specific transactions, provided such payments would be permitted
under Section 4.8(a). In addition, for purposes of this Section 4.10, any
transaction or series of related transactions between the Company or any
Restricted Subsidiary and an Affiliate of the Company that is approved by a
majority of the Disinterested Directors, if any, shall be deemed to comply with
clause (i) above. Notwithstanding the provisions of this Section 4.10, the
Company and its Restricted Subsidiaries will be permitted to consummate the
Transactions and to pay fees on the Closing Date in connection with the
consummation of the Transactions as described in the Offering Memorandum.
Section 4.11. Limitations on Liens.
--------------------
The Company will not create, incur or otherwise cause or suffer to
exist or become effective any Liens of any kind (other than Permitted Liens)
upon any property or asset of the Company (including, without limitation, any
Capital Interest or Debt of any Restricted Subsidiary), now owned or hereafter
acquired by the Company, unless:
(i) if such Lien secures Debt which is pari passu with the Notes,
then the Notes are secured on an equal and ratable basis with the obligations so
secured until such time as such obligation is no longer secured by a Lien; or
(ii) if such Lien secures Debt which is subordinated to the Notes,
any such Lien shall be subordinated to the Lien granted to the Holders of the
Notes to the same extent as such subordinated Debt is subordinated to the Notes.
Section 4.12. [INTENTIONALLY OMITTED].
-----------------------
Section 4.13. Limitation on Creation of Unrestricted Subsidiaries.
---------------------------------------------------
The Company may designate any Subsidiary of the Company to be an
"Unrestricted Subsidiary" as provided below in which event such Subsidiary and
each other Person that is then or thereafter becomes a Subsidiary of such
Subsidiary will be deemed to be an Unrestricted Subsidiary. "Unrestricted
Subsidiary" means:
(1) any Subsidiary designated as such by the Board of Directors as
set forth below where;
(a) neither the Company nor any of its Restricted Subsidiaries;
58
(i) provides credit support for, or Guarantee of, any Debt
of such Subsidiary or any Subsidiary of such Subsidiary (including any
undertaking, agreement or instrument evidencing such Debt) or
(ii) is directly or indirectly liable for any Debt of such
Subsidiary or any Subsidiary of such Subsidiary, and
(b) no default with respect to any Debt of such Subsidiary or
any Subsidiary of such Subsidiary (including any right which the holders
thereof may have to take enforcement action against such Subsidiary) would
permit (upon notice, lapse of time or both) any holder of any other Debt of
the Company and its Restricted Subsidiaries to declare a default on such
other Debt or cause the payment thereof to be accelerated or payable prior
to its final scheduled maturity; and
(2) any Subsidiary of an Unrestricted Subsidiary.
the Company may designate any Subsidiary (other than the Operating Partnership
or PFC) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital
Interests of, or owns or holds any Lien on any property of, any other Restricted
Subsidiary of the Company, provided that either:
(x) the Subsidiary to be so designated has total assets of $1,000 or
less; or
(y) immediately after giving effect to such designation, the Company
could Incur at least $1.00 of additional Debt pursuant to Section 4.6(a) and
provided, further, that the Company could make a Restricted Payment in an amount
equal to the greater of the fair market value or book value of such Subsidiary
pursuant to Section 4.8 and such amount is thereafter treated as a Restricted
Payment for the purpose of calculating the aggregate amount available for
Restricted Payments thereunder.
An Unrestricted Subsidiary may be designated as a Restricted Subsidiary if:
(i) all the Debt of such Unrestricted Subsidiary could be Incurred
under Section 4.6; and
(ii) all the Liens on the property and assets of such Unrestricted
Subsidiary could be incurred pursuant to Section 4.11.
Section 4.14. [INTENTIONALLY OMITTED].
---------------------
Section 4.15. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
The Company will not, and will not permit any Restricted Subsidiary
to, enter into any Sale and Leaseback Transaction unless:
(i) the consideration received in such Sale and Leaseback
Transaction is at least equal to the fair market value of the property sold, as
determined by a board resolution of the Company, and
59
(ii) immediately prior to and after giving effect to the Attributable
Debt in respect of such Sale and Leaseback Transaction, the Company could incur
at least $1.00 of additional Debt (other than Permitted Debt) in compliance with
Section 4.6.
Section 4.16. Payments for Consent.
--------------------
Neither the Company nor any of its Restricted Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or agreed to be paid to all holders of the Notes that so consent, waive or agree
to amend in the time frame set forth in solicitation documents relating to such
consent, waiver or agreement.
Section 4.17. Limitation on Conduct of Business of PFC.
----------------------------------------
Except to the extent permitted under Section 5.1, PFC will not hold
any operating assets or other properties or conduct any business other than to
serve as an Issuer and co-obligor with respect to the Notes and will not own any
Capital Interest of any other Person.
Section 4.18. Change of Control.
-----------------
Upon the occurrence of a Change of Control, the Company will make an
Offer to Purchase all of the outstanding Notes at a Purchase Price in cash equal
to:
(x) 101% of the Accreted Value thereof, if the Purchase Date is on
or prior to August 1, 2004, or
(y) 101% of the principal amount at Stated Maturity thereof,
together with accrued interest, if any, to the Purchase Date if the Purchase
Date is after August 1, 2004.
For purposes of the foregoing, an Offer to Purchase shall be deemed to have been
made if:
(i) within 30 days following the date of the consummation of a
transaction or series of transactions that constitutes a Change of Control, the
Company commences an Offer to Purchase all outstanding Notes at the Purchase
Price (provided that the running of such 30-day period shall be suspended, for
up to a maximum of 30 days, during any period when the commencement of such
Offer to Purchase is delayed or suspended by reason of any court's or
governmental authority's review of or ruling on any materials being employed by
the Company to effect such Offer to Purchase, so long as the Company has used
and continues to use its best efforts to make and conclude such Offer to
Purchase promptly) and
(ii) all Notes properly tendered pursuant to the Offer to Purchase
are purchased on the terms of such Offer to Purchase.
(b) the Company will not be required to make an Offer to Purchase
upon a Change of Control if a third party makes an Offer to Purchase
contemporaneously with or upon a Change of Control in the manner, at the times
and otherwise in compliance with the requirements
60
of this Indenture and purchases all Notes validly tendered and not withdrawn
under its Offer to Purchase.
(c) On the Purchase Date, the Issuers shall, to the extent lawful,
(i) accept for payment Notes or portions thereof or beneficial interests under a
Global Note properly tendered pursuant to the Offer to Purchase, (ii) deposit
with the Paying Agent (by no later than 11:00 a.m. on such date) money
sufficient to pay the Purchase Price of all Notes or portions thereof or
beneficial interests so tendered and (iii) deliver or cause to be delivered to
the Trustee Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof tendered to the Issuers. The Paying Agent shall
promptly (1) mail to each holder of Notes so accepted and (2) remit to the
Depository for crediting to the respective accounts of the Holders under a
Global Note of beneficial interest so accepted, payment in an amount equal to
the purchase price for such Notes (which payment shall, in the case of the
Holders of beneficial interests in a Global Note, be through the facilities of
the Depository), and the Issuers shall execute and issue, and the Trustee shall
promptly authenticate and mail to such holder, a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered and shall issue a
Global Note equal in principal amount to any unpurchased portion of beneficial
interest so surrendered; provided that each such new Note shall be issued in an
original principal amount in denominations of $1,000 and integral multiples
thereof.
(d) If the Company or any Subsidiary thereof has issued any
outstanding (A) Debt that is subordinated in right of payment to the Notes or
(B) Preferred Interests, and the Company or such Subsidiary is required to make
a Offer to Purchase or to make a distribution with respect to such subordinated
Debt or Preferred Interests in the event of a Change of Control, the Company
shall not consummate any such offer or distribution with respect to such
subordinated Debt or Preferred Interests until such time as the Company shall
have paid the Purchase Price in full to the holders of Notes that have accepted
the Company's Offer to Purchase and shall otherwise have consummated the Offer
to Purchase made to holders of the Notes. The Company will not issue Debt that
is subordinated in right of payment to the Notes or Preferred Interests with
change of control provisions requiring the payment of such Debt or Preferred
Interests prior to making and consummating an offer to purchase the Notes in the
event of a Change of Control under this Indenture.
(e) The Issuers will comply, to the extent applicable, with the
requirements of Rule l4e-1 under the Securities Exchange Act of 1934 and other
securities laws or regulations in connection with any repurchase of the Notes as
described above.
Section 4.19. Maintenance of Office or Agency.
-------------------------------
The Issuers shall maintain in New York, New York an office or agency
where Notes may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Issuers in
respect of the Notes and this Indenture may be served. The Issuers shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuers 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 as set forth in Section
10.2. The Issuers may also from time to time
61
designate one or more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations, provided, however, that no such designation or rescission
shall in any manner relieve the Issuers of their obligation to maintain an
office or agency in New York, New York for such purposes. The Issuers shall give
prompt written notice to the Trustee of such designation or rescission and of
any change in the location of any such other office or agency. The Issuers
hereby initially designate the Affiliate Trust Office of the Trustee set forth
in Section 2.3(c) as such office of the Company.
Section 4.20. Maintenance of Properties and Insurance.
---------------------------------------
(a) The Company shall cause all material properties used or useful
to the conduct of its business or the business of any of its Restricted
Subsidiaries to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all equipment deemed
necessary in the good faith judgment of the Officers of the Company and shall
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof; provided, however, that nothing in this Section 4.20 shall
prevent the Company or any Restricted Subsidiary from discontinuing the
operation or maintenance of any of such properties, or disposing of any of them,
if such discontinuance or disposal is in the good faith judgment of the Board of
Directors of the Company or the Restricted Subsidiary concerned, as the case may
be, desirable in the conduct of the business of the Company or such Restricted
Subsidiary, as the case may be, and is not adverse 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 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 of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Company, for corporations similarly situated in
the industry.
ARTICLE V.
SUCCESSOR CORPORATION
---------------------
Section 5.1. Limitation on Merger, Conveyance, Transfer and Lease.
----------------------------------------------------
The Company will not, and will not permit any Restricted Subsidiary
to, in any transaction or series of transactions, consolidate with or merge into
any other Person (other than a merger of a Restricted Subsidiary into the
Company in which the Company is the continuing Person or the merger of a
Restricted Subsidiary into or with another Restricted Subsidiary or another
Person that as a result of such transaction becomes a Restricted Subsidiary), or
transfer all or substantially all of the assets of the Company and its
Restricted Subsidiaries, taken as a whole, to any other Person, unless, in the
case of the Company:
62
(i) either:
(a) the Company shall be the continuing Person; or
(b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged, or the Person that
acquires, by sale, assignment, conveyance, transfer, lease or disposition,
all or substantially all of the property and assets of the Company (such
Person, the "Surviving Entity"),
(1) shall be a corporation, partnership, limited liability
company or similar entity organized and validly existing under the
laws of the United States, any political subdivision thereof or any
state thereof or the District of Columbia and
(2) shall expressly assume, by a supplemental indenture,
the due and punctual payment of all amounts due in respect of the
principal of (and premium, if any) and interest on all the Notes and
the performance of the covenants and obligations of the Company under
this Indenture;
provided that at any time the Company or its successor is a limited
partnership, there shall be a co-issuer of the Notes that is a corporation;
(ii) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including, without
limitation, any Debt Incurred or anticipated to be Incurred in connection with
or in respect of such transaction or series of transactions), no Default or
Event of Default shall have occurred and be continuing or would result
therefrom;
(iii) immediately after giving effect to any such transaction or
series of transactions on a pro forma basis (including, without limitation, any
Debt Incurred or anticipated to be Incurred in connection with or in respect of
such transaction or series of transactions) as if such transaction or series of
transactions had occurred on the first day of the determination period, the
Company (or the Surviving Entity if the Company is not continuing) could Incur
$1.00 of additional Debt (other than Permitted Debt) under Section 4.6(a);
(iv) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any Debt
Incurred or anticipated to be Incurred in connection with or in respect of such
transaction or series of transactions), the Company (or the Surviving Entity if
the Company is not continuing) shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the Company immediately prior to such
transaction; and
(v) the Company delivers, or causes to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an officers'
certificate and an opinion of counsel, each stating that such consolidation,
merger, sale, conveyance, assignment, transfer, lease or other disposition
comply with the requirements of this Indenture.
63
Notwithstanding the foregoing, if, in the good faith determination of
the Board of Directors of the Company,
(I) the purpose of such transaction is:
(A) to transform the Company into a corporation or
(B) to change the state of organization of the Company or a
Restricted Subsidiary, and
(II) no material adverse effect on the creditworthiness of the
Company (or the Surviving Entity if the Company is not continuing) and its
Restricted Subsidiaries, taken as a whole, shall result as a consequence of the
transaction,
then clauses (iii) and (iv) above shall not apply; it being recognized that such
reorganization shall not be considered to have a material adverse effect on the
creditworthiness of the Company solely because the Surviving Entity is subject
to income taxation.
For all purposes of this Indenture and the Notes, Subsidiaries of any
Surviving Entity will, upon such transaction or series of transactions, become
Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to
this Indenture and all Debt, and all Liens on property or assets, of the
Surviving Entity and its Subsidiaries that was not Debt, or were not Liens on
property or assets, of the Company and its Subsidiaries immediately prior to
such transaction or series of transactions shall be deemed to have been Incurred
upon such transaction or series of transactions.
Upon any transaction or series of transactions that are of the type
described in, and are effected in accordance with, conditions described in the
immediately preceding paragraphs, the Surviving Entity shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or PFC,
as the case may be, under this Indenture with the same effect as if such
Surviving Entity had been named as the Company or PFC therein; and when a
Surviving Person duly assumes all of the obligations and covenants of the
Company or PFC, as the case may be, pursuant to this Indenture and the Notes,
except in the case of a lease, the predecessor Person shall be relieved of all
such obligations.
(b) In connection with any consolidation, merger or transfer of
assets contemplated by this Section 5.1, the Company shall deliver or cause to
be delivered, to the Trustee, in form and substance reasonably satisfactory to
the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and the supplemental indenture in
respect thereto comply with this Section 5.1 and that all conditions precedent
herein provided for relating to such transaction or transactions have been
complied with.
Section 5.2. Successor Person Substituted.
----------------------------
Upon any transaction or series of transactions that are of the type
described in, and are effected in accordance with, conditions described in
Section 5.1 herein, the Surviving Entity shall succeed to, and be substituted
for, and may exercise every right and power of, the
64
Company or PFC, as the case may be, under this Indenture with the same effect as
if such Surviving Entity had been named as the Company or PFC therein; and when
a Surviving Person duly assumes all of the obligations and covenants of the
Company or PFC, as the case may be, pursuant to this Indenture and the Notes,
except in the case of a lease, the predecessor Person shall be relieved of all
such obligations.
ARTICLE VI.
DEFAULTS AND REMEDIES
---------------------
Section 6.1. Events of Default.
-----------------
Each of the following is an "Event of Default":
(1) default in the payment in respect of the principal,
Redemption Price or Purchase Price of, and accrued interest on, any Note at
its maturity (whether at Stated Maturity or upon repurchase, acceleration,
optional redemption or otherwise);
(2) default in the payment of any interest upon any Note when
it becomes due and payable, and continuance of such default for a period of
30 days;
(3) default in the making of an Offer to Purchase as required
by this Indenture;
(4) failure to perform or comply with Section 5.1 hereof;
(5) default in the performance, or breach, of any covenant or
agreement of an Issuer in this Indenture (other than a covenant or
agreement a default in whose performance or whose breach is specifically
dealt with in (1), (2), (3) or (4) above), and continuance of such default
or breach for a period of 30 days after written notice thereof has been
given to the Issuers by the Trustee or to the Issuers and the Trustee by
the Holders of at least 25% in aggregate principal amount at Stated
Maturity of the outstanding Notes;
(6) a default or defaults under any bonds, debentures, notes
or other evidences of Debt (other than the Notes) by the Company or any
Restricted Subsidiary having, individually or in the aggregate, a principal
or similar amount outstanding of at least $5,000,000, whether such Debt now
exists or shall hereafter be created, which default or defaults shall have
resulted in the acceleration of the maturity of such Debt prior to its
express maturity or shall constitute a failure to pay such Debt when due
and payable after the expiration of any applicable grace period with
respect thereto;
(7) the entry against the Company or any Restricted Subsidiary
of a final judgment or final judgments for the payment of money in an
aggregate amount in excess of $5,000,000 by a court or courts of competent
jurisdiction, which judgments remain undischarged, unwaived, unstayed,
unbonded or unsatisfied for a period of 60 consecutive days; or
65
(8) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(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) generally is not paying its debts as they become due; or
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of the property of the
Company or any Significant Subsidiary, or
(C) orders the liquidation of the Company or any Significant
Subsidiary,
and, in each case, 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.
The Trustee may withhold notice to the Holders of the Notes of any
Default (except in payment of principal, Redemption Price or Purchase Price of,
and accrued interest on, the Notes) if the Trustee considers it to be in the
best interest of the Holders of the Notes to do so.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Issuers with
the intention of avoiding payment of the premium that the Issuers would have had
to pay if the Issuers then had elected to redeem the Notes pursuant to Section
3.7(a) hereof, an equivalent premium shall also become and be immediately due
and payable to the extent permitted by law upon the acceleration of the Notes.
If an Event of Default occurs prior to the first date on which the Issuers could
redeem the Notes pursuant to Section 3.7(a) hereof, by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Issuers with
the intention of avoiding the prohibition on
66
redemption of the Notes prior to such first date, then the greatest premium
specified in Section 3.7(a) (expressed as a percentage of the principal amount
that would otherwise be due) shall also become immediately due and payable to
the extent permitted by law upon acceleration of the Notes.
Section 6.2. Acceleration.
------------
If an Event of Default (other than an Event of Default specified in
Section 6.1(8) or (9) above) occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount at Stated Maturity of the outstanding Notes may declare by a notice in
writing to Holdings (and to the Trustee if given by Holders), the Notes to be
due and payable immediately in an amount equal to:
(x) the Accreted Value of the Notes outstanding on the date of
acceleration, if such declaration is made on or prior to August 1, 2004, or
(y) the entire principal amount at Stated Maturity of the Notes
outstanding on the date of acceleration plus accrued but unpaid interest, if
any, to the date of acceleration, if such declaration is made after August 1,
2004;
provided, however, that after such acceleration, but before a judgment or decree
based on acceleration, the Holders of a majority in aggregate principal amount
of the outstanding Notes may, under certain circumstances, rescind and annul
such acceleration if all Events of Default, other than the nonpayment of
accelerated principal of or interest on the Notes, have been cured or waived as
provided in the Indenture. If an Event of Default specified in clause 6.1(8) or
6.1(9) above occurs, the principal, Redemption Price or Purchase Price of, and
accrued interest on, the Notes then outstanding shall ipso facto become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. The Trustee may withhold from Holders notice of any
Default (except in payment of principal of, premium, if any, and interest) if
the Trustee determines that withholding notice is in the best interest of the
Holders to do so.
Section 6.3. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal, Redemption Price or Purchase Price of, and accrued
interest on, the Notes or to enforce the performance of any provision of the
Notes or this Indenture and may take any necessary action requested of it as
Trustee to settle, compromise, adjust or otherwise conclude any proceedings to
which it is a party. The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder 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 to the
extent permitted by law.
67
Section 6.4. Waiver of Past Defaults and Events of Default.
---------------------------------------------
Subject to Sections 6.2, 6.7 and 8.2 hereof, the Holders of not less
than a majority in aggregate principal amount of the outstanding Notes may on
behalf of the Holders of all the Notes waive any past Default under this
Indenture and its consequences, except a Default (1) in any payment in respect
of the principal, Redemption Price or Purchase Price of, and accrued interest
on, any Notes (including any Note which is required to have been purchased
pursuant to an Offer to Purchase which has been made by the Issuers), or (2) in
respect of a covenant or provision hereof which under this Indenture cannot be
modified or amended without the consent of the Holder of each outstanding Note
affected. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
Section 6.5. Control by Majority.
-------------------
The Holders of a majority in principal amount of the Notes then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee by this Indenture. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another Noteholder
not taking part in such direction, and the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken or if the
Trustee in good faith shall, by a Trust Officer, determine that the proceedings
so directed, or the exercise of such trust or power, may involve it in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 6.6. Limitation on Suits.
-------------------
Subject to Section 6.7 hereof, no Holder of any Note will have any
right to institute any proceeding with respect to this Indenture or for any
remedy thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default and unless the Holders of at
least 25% in aggregate principal amount of the outstanding Notes shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as Trustee, and the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of the outstanding Notes a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days. A Noteholder may not use this Indenture to prejudice
the rights of another Noteholder or to obtain a preference or priority over
another Noteholder.
Section 6.7. Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal, Redemption Price or
Purchase Price of, and accrued interest on, the Note on or after the respective
due dates expressed in the Note, or to bring suit
68
for the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.8. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal, Redemption Price or
Purchase Price of, or accrued interest on, the Notes specified in Section 6.1(1)
or (2) hereof occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Issuers (or any other
obligor on the Notes) for the whole amount of unpaid principal, Redemption
Price, Purchase Price of, and accrued interest on, the Notes remaining unpaid,
together with interest on overdue principal, Redemption Price or Purchase Price,
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate then borne by the Notes, and
such further amounts as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, including all sums due and
owing to the Trustee pursuant to Section 7.7.
Section 6.9. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Issuers (or any
other obligor upon the Notes), their creditors or their property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its reasonable charges and expenses to the extent that any such
charges and expenses are not paid out of the estate in any such proceedings and
any custodian in any such judicial proceeding is hereby authorized by each
Noteholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Noteholder any plan or
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceedings.
Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article VI, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
principal, Redemption Price or Purchase Price of, and accrued interest as to
each, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes; and
69
THIRD: to the Issuers.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
Section 6.12. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Issuers, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE VII.
TRUSTEE
-------
Section 7.1. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the same circumstances in the conduct of
his 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 in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture but, in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the
70
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.1.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.2 and 6.5 hereof.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not reasonably assured
to it.
(d) Whether or not therein expressly so provided, paragraphs (a),
(b), (c), (e), (f) and (g) of this Section 7.1 shall govern every provision of
this Indenture that in any way relates to the Trustee.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity reasonably satisfactory to it against any
loss, liability, expense or fee.
(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 the law.
(g) The Trustee shall not be deemed to have notice of any fact or
matter with respect hereto, including without limitation, the occurrence of a
Default or Event of Default, unless such fact or matter is actually known by a
Trust Officer charged with responsibility for administering this Indenture or
unless in writing received by a Trust Officer and making specific reference to
this Indenture.
Section 7.2. Rights of Trustee.
-----------------
Subject to Section 7.1 hereof:
(1) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document (including without limitation any
Company Request or Officers'
71
Certificate) reasonably believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in any document.
(2) Before the Trustee acts or refrains from acting, including
whenever the Trustee deems it desirable that a matter be proved or established
prior to it acting or refraining from acting, it may require an Officers'
Certificate or an Opinion of Counsel, or both, which shall conform to the
provisions of Section 10.5 hereof. The Trustee shall be protected and shall not
be liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion.
(3) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent (other than the negligence or
willful misconduct of an agent who is an employee of the Trustee) appointed by
it with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers; provided that the Trustee's conduct does not constitute
negligence or bad faith.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
Section 7.3. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the Issuers, or any Affiliates thereof, with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11 hereof.
Section 7.4. Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Issuers' use of
the proceeds from the sale of Notes or any money paid to the Company pursuant to
the terms of this Indenture and it shall not be responsible for any statement in
the Notes or any document used in connection with the sale of the Notes other
than its certificate of authentication.
Section 7.5. Notice of Defaults.
------------------
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Noteholder notice of the Default within
90 days after it occurs. Except in the case of a Default in payment of the
principal, Redemption Price or Purchase Price of, and accrued interest on, any
Note, the Trustee may withhold the notice if and so long as the board of
directors of the Trustee, the executive committee or any trust committee of such
board and/or its Trust Officers in good faith determine(s) that withholding the
notice is in the interest of the Noteholders.
72
Section 7.6. Reports by Trustee to Holders.
-----------------------------
If required by TIA (S) 313(a), within 60 days after May 15 of any
year, commencing the May 15 following the date of this Indenture, the Trustee
shall mail to each Noteholder a brief report dated as of such May 15 that
complies with TIA (S) 313(a). The Trustee also shall comply with TIA (S)
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA (S) 313(c) and TIA (S) 313(d). A copy of each report at the time of its
mailing to Noteholders shall be filed with the SEC and each stock exchange on
which the Notes are listed. The Company shall promptly notify the Trustee when
the Notes are listed on any stock exchange.
Section 7.7. Compensation and Indemnity.
--------------------------
The Issuers jointly and severally shall pay to the Trustee from time
to time such reasonable compensation as shall be agreed in writing between the
Issuers and the Trustee for its services 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 Issuers shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or made by it in
connection with its duties under this Indenture, including the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Issuers, jointly and severally, agree to indemnify each of the
Trustee and any predecessor Trustee for, and hold it harmless against, any and
all loss, damage, claim, liability, reasonable expense (including but not
limited to reasonable attorneys' fees and expenses) or taxes (other than taxes
based on the income of the Trustee) incurred by it in connection with the
acceptance or performance of its duties under this Indenture including the
reasonable 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 (including, without limitation, settlement costs). The Trustee shall
notify the Issuers in writing promptly of any claim asserted against the Trustee
for which it may seek indemnity. However, the failure by the Trustee to so
notify the Issuers shall not relieve the Issuers of their obligations hereunder.
Notwithstanding the foregoing, the Issuers need not reimburse the
Trustee for any expense or indemnify it against any loss or liability incurred
by the Trustee through its negligence or bad faith. To secure the payment
obligations of the Issuers in this Section 7.7, the Trustee shall have a lien
prior to the Notes on all money or property held or collected by the Trustee in
its capacity as such, except such money or property held in trust to pay
principal, Redemption Price or Purchase Price of, and accrued interest on,
particular Notes. The obligations of the Issuers under this Section 7.7 to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall be joint and several liabilities of the Issuers and shall
survive the satisfaction and discharge of this Indenture, including the
termination or rejection hereof in any bankruptcy proceeding to the extent
permitted by law.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(8) or (9) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
73
For purposes of this Section 7.7, the term "Trustee" shall include any
trustee appointed pursuant to Article 9.
Section 7.8. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Issuers in writing, such
resignation to become effective upon the appointment of a successor Trustee.
The Holders of a majority in principal amount of the outstanding Notes may
remove the Trustee by notifying the removed Trustee in writing and may appoint a
successor Trustee with the Company's written consent which consent shall not be
unreasonably withheld. The Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(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 otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or any
Holder of outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee. If the Trustee fails to comply with
Section 7.10 hereof, any Noteholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers.
Immediately following such delivery, the retiring Trustee shall,
subject to its rights under Section 7.7 hereof, transfer all property held by it
as Trustee to the successor Trustee, 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 Noteholder. Notwithstanding
replacement of the Trustee pursuant to this Section 7.8, the Issuers'
obligations under Section 7.7 hereof shall continue for the benefit of the
retiring Trustee.
Section 7.9. Successor Trustee by Consolidation, Merger or
---------------------------------------------
Conversion.
----------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation or national banking association, subject to Section 7.10 hereof, the
successor corporation or national banking association without any further act
shall be the successor Trustee.
74
Section 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1), (2) and (5) in every respect. The Trustee
shall 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
comply with TIA (S) 310(b), including the provision in (S) 310(b)(1); provided
that there shall be excluded from the operation of TIA (S) 310(b)(1) any
indenture or indentures under which other securities, or conflicts of interest
or participation in other securities, of the Issuers are outstanding if the
requirements for exclusion set forth in TIA (S) 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against Issuers.
-------------------------------------------------
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
Section 7.12. Paying Agents.
-------------
The Issuers shall cause each Paying Agent other than the Trustee or an
Affiliate of the Trustee to execute and deliver to it and the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the payment of
principal, Redemption Price or Purchase Price of, and accrued interest on, the
Notes (whether such sums have been paid to it by the Issuers or by any obligor
on the Notes) in trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all sums
so held in trust by it together with a full accounting thereof; and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Issuers (or by any obligor on the Notes) in
the payment of any installment of the principal, Redemption Price or Purchase
Price of, and accrued interest on, the Notes when the same shall be due and
payable.
ARTICLE VIII.
AMENDMENT, SUPPLEMENT AND WAIVER
--------------------------------
Section 8.1. Without Consent of Holders.
--------------------------
Without the consent of any Holders, the Issuers, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental to this Indenture for any of the following purposes:
75
(1) to evidence the succession of another Person to the Issuers and
the assumption by any such successor of the covenants of the Issuers in this
Indenture and in the Notes; or
(2) to add to the covenants of the Issuers for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Issuers;
or
(3) to add additional Events of Default; or
(4) to provide for uncertificated Notes in addition to or in place of
the certificated Notes; or
(5) to evidence and provide for the acceptance of appointment under
this Indenture by a successor Trustee; or
(6) to secure the Notes; or
(7) to cure any ambiguity, to correct or supplement any provision in
this Indenture which may be defective or inconsistent with any other provision
in this Indenture, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such actions pursuant to
this clause shall not adversely affect the interests of the Holders in any
material respect; or
(8) to issue Add-On Notes or Exchange Notes; or
(9) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act.
The Trustee is hereby authorized to join with the Issuers in the
execution of any supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to enter
into any such supplemental indenture which adversely affects its own rights,
duties or immunities under this Indenture.
Section 8.2. With Consent of Holders.
-----------------------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes, the Issuers and the Trustee
may enter into an indenture or indentures supplemental to this Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture, including the definitions therein; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each outstanding Note affected thereby:
(1) change the Stated Maturity of any Note or of any installment of
interest on any Note, or reduce the amount payable in respect of the principal
thereof or the rate of interest thereon or any premium payable thereon, or
reduce the amount that would be due and payable on acceleration of the maturity
thereof, or change the place of payment where, or the coin or
76
currency in which, any Note or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof; or
(2) reduce the percentage in aggregate principal amount of the
outstanding Notes, the consent of whose Holders if required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults thereunder and their consequences) provided for in this Indenture; or
(3) modify the obligations of the Issuers to make Offers to Purchase
upon a Change of Control or from the Excess Proceeds of Asset Sales; or
(4) subordinate, in right of payment, the Notes to any other Debt of
the Issuers; or
(5) modify any of the provisions of this proviso to Section 8.2 or
provisions relating to waiver of defaults or certain covenants contained in
Section 6.2, 6.4 or 6.7 hereof, except to increase any such percentage required
for such actions or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
outstanding Note affected thereby, or
(6) release any Guarantees required to be maintained under this
Indenture.
After a modification, amendment, supplement or waiver under this
Section 8.2 becomes effective, the Issuers shall mail to the Holders a notice
briefly describing the modification, amendment, supplement or waiver. Any
failure of the Issuers to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such modification,
amendment, supplement or waiver.
It shall not be necessary for the consent of the Holders under this
Section 8.2 to approve the particular form of any proposed amendment,
modification, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
Section 8.3. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
Section 8.4. Revocation and Effect of Consents.
---------------------------------
Until a modification, amendment, supplement, waiver or other action
becomes effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may
revoke the consent as to his Note or portion of a Note, if the Trustee receives
the notice of revocation before the date the modification, amendment,
supplement, waiver or other action becomes effective.
77
The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any modification,
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such modification, amendment, supplement, or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 120 days after such record date unless the consent of the requisite
number of Holders has been obtained. After a modification, amendment,
supplement, waiver or other action becomes effective, it shall bind every
Noteholder.
Section 8.5. Notation on or Exchange of Notes.
--------------------------------
If a modification, amendment, supplement or waiver changes the terms
of a Note, the Trustee may request the Holder of the Note to deliver it to the
Trustee. In such case, the Trustee shall place an appropriate notation on the
Note about the changed terms and return it to the Holder. Alternatively, if the
Issuers or the Trustee so determine, the Issuers in exchange for the Note shall
issue and the Trustee shall authenticate a new security that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such modification, amendment,
supplement or waiver.
Section 8.6. Trustee To Sign Amendments, etc.
-------------------------------
The Trustee shall sign any modification, amendment, supplement or
waiver authorized pursuant to this Indenture if the modification, amendment,
supplement or waiver does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. If it does, the Trustee may, but need not, sign
it. In signing or refusing to sign such modification, amendment, supplement or
waiver, the Trustee shall be entitled to receive and, subject to Section 7.1
hereof, shall be fully protected in relying upon an Officers' Certificate and an
Opinion of Counsel stating that such modification, amendment, supplement or
waiver is authorized or permitted by this Indenture and such supplemental
indenture constitutes the legal, valid and binding obligation of the Issuers
enforceable against each of them in accordance with its terms (subject to
customary exceptions). Neither of the Issuers may sign a modification,
amendment or supplement until the Board of Directors of the Issuers approves it.
ARTICLE IX.
DISCHARGE OF INDENTURE; DEFEASANCE
----------------------------------
Section 9.1. Discharge of Indenture.
----------------------
The Issuers may terminate their obligations under this Indenture,
except the obligations referred to in the last paragraph of this Section 9.1
when (1) either: (A) all Notes theretofore authenticated and delivered have been
delivered to the Trustee for cancellation, or (B) all such Notes not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, or
(ii) will become due and payable within 60 days or are to be called for
redemption within 60 days (a "Discharge") under irrevocable arrangements
satisfactory to the
78
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Issuers, and the Issuers have irrevocably deposited or
caused to be deposited with the Trustee funds in an amount sufficient to pay and
discharge the entire indebtedness on the Notes, not theretofore delivered to the
Trustee for cancellation, for principal, Redemption Price of, and accrued
interest on, the Notes to the Stated Maturity or date of redemption; (2) the
Issuers have paid or caused to be paid all other sums then due and payable
hereunder by the Issuers; and (3) the Issuers have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent under this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.
After such delivery the Trustee upon request shall acknowledge in
writing the satisfaction and discharge of the Issuers' obligations under the
Notes, the Guarantees and this Indenture except for those surviving obligations
specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuers in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9,
2.14, 4.19, 9.5, 9.6 and 9.8, the rights, powers, duties and immunities of the
Trustee hereunder (including claims of, or payments to, the Trustee under or
pursuant to Section 7.7 hereof), the provisions of Article III and the Trustee's
and Paying Agent's obligations in Section 9.8 shall survive until the Notes are
no longer outstanding. Upon such satisfaction and discharge, only the
obligations of the Issuers in Sections 2.9, 7.7, 9.5, 9.6 and 9.8 hereof shall
survive.
Section 9.2. Legal Defeasance.
----------------
The Issuers may at their option, by Board Resolution, be discharged
from their obligations with respect to the Notes on the date the conditions set
forth in Section 9.4 below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, such Legal Defeasance means that the Issuers shall be deemed to
have paid and discharged the entire indebtedness represented by the Notes and to
have satisfied all their other obligations under such Notes and this Indenture
insofar as such Notes are concerned (and the Trustee, at the expense of the
Issuers, shall, subject to Section 9.6 hereof, execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
outstanding Notes to receive solely from the trust funds described in Section
9.4 hereof and as more fully set forth in such Section, payments in respect of
the principal, Redemption Price or Purchase Price of, and accrued interest on,
such Notes when such payments are due, (B) the Issuers' obligations with respect
to such Notes under Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8 and 4.19 hereof, (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder
(including claims of, or payments to, the Trustee under or pursuant to Section
7.7 hereof), (D) Article III and (E) this Article IX. Subject to compliance
with this Article IX, the Issuers may exercise their option under this Section
9.2 with respect to the Note notwithstanding the prior exercise of its option
under Section 9.3 below with respect to the Notes.
Section 9.3. Covenant Defeasance.
-------------------
At the option of the Issuers, pursuant to a Board Resolution, the
Issuers shall be released from their respective obligations under Sections 4.2
through 4.18 hereof, inclusive, Section 4.20, clause (a)(ii) of Section 5.1
hereof (with respect to Sections 4.2 through 4.18
79
hereof, inclusive, and Section 4.20), Sections 6.1(3) and 6.1(7), clause
(a)(iii) of Section 5.1 hereof and clause (a)(iv) of Section 5.1 hereof, with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 9.4 hereof are satisfied (hereinafter, "Covenant Defeasance"), any
omission to comply with such obligations shall not constitute a Default or Event
of Default, and the Notes shall thereafter be deemed not to be outstanding for
purposes of any direction, waiver, consent, declaration or act of the Holders
(and the consequences thereof) in connection with such covenants but shall
continue to be outstanding for all other purposes hereunder. For this purpose,
such Covenant Defeasance means that the Issuers may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section or portion thereof, whether directly or
indirectly by reason of any reference elsewhere herein to any such specified
Section or portion thereof or by reason of any reference in any such specified
Section or portion thereof to any other provision herein or in any other
document, but the remainder of this Indenture and the Notes shall be unaffected
thereby.
Section 9.4. Conditions to Legal Defeasance or Covenant Defeasance.
-----------------------------------------------------
The following shall be the conditions to application of Section 9.2 or
Section 9.3 hereof to the outstanding Notes:
(1) the Issuers must irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 hereof who shall agree to comply with the provisions of this
Article IX applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to the benefits of the Holders of such Notes: (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount, or (C) a combination
thereof, in each case sufficient without reinvestment, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the entire indebtedness in respect of the principal, Redemption
Price or Purchase Price of, and accrued interest on, such Notes on the Stated
Maturity thereof or (if the Issuers have made irrevocable arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name and at the expense of the Issuers) the Redemption Date
thereof, as the case may be, in accordance with the terms of this Indenture and
such Notes;
(2) in the case of Legal Defeasance, the Issuers shall have
delivered to the Trustee an Opinion of Counsel stating that (A) the Issuers have
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case (A) or (B) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such Notes
will not recognize gain or loss for federal income tax purposes as a result of
the Legal Defeasance to be effected with respect to such Notes and will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would be the case if such Legal Defeasance were not to occur;
80
(3) in the case of Covenant Defeasance, the Issuers shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
such outstanding Notes will not recognize gain or loss for federal income tax
purposes as a result of the Covenant Defeasance to be effected with respect to
such Notes and will be subject to federal income tax on the same amount, in the
same manner and at the same times as would be the case if such Covenant
Defeasance were not to occur;
(4) no Default or Event of Default with respect to the outstanding
Notes shall have occurred and be continuing at the time of such deposit after
giving effect thereto or, in the case of Legal Defeasance, either: (A) the
Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect
that, based upon existing precedents, if the matter were properly briefed, a
court should hold that the deposit of moneys and/or U.S. Government Obligations
as provided in clause (1) of this Section 9.4 would not constitute a preference
voidable under Section 547 or 548 of the federal bankruptcy laws; or (B) no
Default or Event of Default relating to bankruptcy or insolvency shall have
occurred and be continuing at any time on or prior to the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 91st day);
(5) such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the TIA (assuming
all Notes are in default within the meaning of such Act);
(6) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other agreement or
instrument to which either of the Issuers is a party or by which either of them
is bound;
(7) such Legal Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such Act or exempt from registration thereunder; and
(8) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Legal Defeasance or Covenant Defeasance have been
complied with.
Section 9.5. Deposited Money and U.S. Government Obligations To Be
-----------------------------------------------------
Held in Trust; Other Miscellaneous Provisions.
---------------------------------------------
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.4 hereof in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Notes, of all sums due and to become due thereon in respect of
principal, Redemption Price or Purchase Price of, and accrued interest on, the
Notes, but such money need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no duty to invest such money
or U.S. Government Obligations. The Issuers shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or
81
assessed against the U.S. Government Obligations deposited pursuant to Section
9.4 hereof or the principal, Redemption Price or Purchase Price of, and accrued
interest on, the Notes received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article IX to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 9.4 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 9.6. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.1, 9.2 or 9.3 hereof 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 obligations of the Issuers under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to this Article IX 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 9.1 hereof; provided, however, that if the Issuers have made any payment
of principal, Redemption Price or Purchase Price of, and accrued interest on,
any Notes because of the reinstatement of their Obligations, the Issuers shall
be subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
Section 9.7. Moneys Held by Paying Agent.
---------------------------
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Issuers, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.1 or 9.4 hereof, to the
Issuers, and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
Section 9.8. Moneys Held by Trustee.
----------------------
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Issuers in trust for the payment of the principal, Redemption Price or
Purchase Price of, and accrued interest on, any Note that are not applied but
remain unclaimed by the Holder of such Note for two years after the date upon
which the principal, Redemption Price or Purchase Price of, and accrued interest
on, such Note shall have respectively become due and payable shall be repaid to
the Issuers upon Company Request, or if such moneys are then held by the Issuers
in trust, such moneys shall be released from such trust; and the Holder of such
Note entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Issuers for the payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; provided, however, that the Trustee or any such Paying
82
Agent, before being required to make any such repayment, may, at the expense of
the Issuers either mail to each Noteholder affected, at the address shown in the
register of the Notes maintained by the Registrar pursuant to Section 2.3
hereof, or cause to be published once a week for two successive weeks, in a
newspaper published in the English language, customarily published each Business
Day and of general circulation in The City of New York, New York, a 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 mailing or publication, any
unclaimed balance of such moneys then remaining will be repaid to the Issuers.
After payment to the Issuers or the release of any money held in trust by the
Issuers, Noteholders entitled to the money must look only to the Issuers for
payment as general creditors unless applicable abandoned property law designates
another person.
ARTICLE X.
MISCELLANEOUS
-------------
Section 10.1. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture or any Guarantee limits, qualifies
or conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
Section 10.2. Notices.
-------
Any notice or communication shall be given in writing and delivered in
person, sent by facsimile, delivered by commercial courier service or mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Issuers:
Petro Stopping Centers Holdings, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
State Street Bank and Trust Company
Corporate Trust
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Petro Stopping Centers
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
83
The Issuers or the Trustee by written notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar. If a notice or communication to a Noteholder is mailed
in the manner provided above, it shall be deemed duly given on the date so
deposited in the mail, whether or not the addressee receives it. Failure to
mail a notice or communication to a Noteholder or any defect in it shall not
affect its sufficiency with respect to other Noteholders. In case by reason of
the suspension of regular mail service, or by reason of any other cause, it
shall be impossible to mail any notice as required by this Indenture, then such
method of notification as shall be made with the approval of the Trustee shall
constitute a sufficient mailing of such notice.
Section 10.3. Communications by Holders with Other Holders.
--------------------------------------------
Noteholders may communicate pursuant to TIA ((S)) 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Issuers, the Trustee, the Registrar and anyone else shall have the protection of
TIA ((S)) 312(c).
Section 10.4. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Issuers to the Trustee to take
any action under this Indenture, the Issuers shall furnish to the Trustee at the
request of the Trustee:
1. an Officers' Certificate (which shall include the statements
set forth in Section 10.5 below) in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
2. an Opinion of Counsel (which shall include the statements
set forth in Section 10.5 below) in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate and Opinion.
----------------------------------------------
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
1. a statement that the Person making such certificate or
opinion has read such covenant or condition;
2. a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
3. a statement that, in the opinion of such Person, it or he
has made such examination or investigation as is necessary to enable it or
him to express an
84
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 such
Person, such covenant or condition has been complied with.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such Person
or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of an Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters, upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of an Issuer stating that the
information with respect to such factual matters is in the possession of such
Issuer, unless such counsel knows or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 10.6. When Treasury Notes Disregarded.
-------------------------------
In determining whether the Holders of the required aggregate principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Issuers or any other obligor on the Notes or by any Affiliate of any of
them shall be disregarded as though they were not outstanding, except that for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes which the Trustee actually
knows are so owned shall be so disregarded. Notes so owned which have been
pledged in good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Notes and that the pledgee is not an Issuer or any other obligor upon the Notes
or any Affiliate of any of them.
Section 10.7. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or meetings of
Noteholders and any Registrar or Paying Agent may make reasonable rules for
their functions provided that no such rule shall conflict with the terms of this
Indenture or the TIA.
85
Section 10.8. Business Days; Legal Holidays.
-----------------------------
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York
or the state in which the Corporate Trust Office is located. If a payment date
is a Legal Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
Section 10.9. Governing Law.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATION LAW, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAW
RULES. THE ISSUERS HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW
YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR
ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR THEMSELVES AND IN RESPECT
OF THEIR PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE ISSUERS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THAT THEY MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH
THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
HOLDER OF THE NOTES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE ISSUERS IN ANY OTHER
JURISDICTION.
Section 10.10. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Issuers or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 10.11. No Recourse Against Others.
--------------------------
No recourse for the payment of the principal, Redemption Price or
Purchase Price of, and accrued interest on, any of the Notes, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Issuers in this Indenture or in any
supplemental indenture, or in any Guarantee, or in any of the Notes, or because
of the creation of any Debt represented thereby, shall be had against any
stockholder, officer, director, partner, affiliate, beneficiary or employee, as
such, past, present or
86
future, of the Issuers or of any successor corporation or against the property
or assets of any such stockholder, officer, employee, partner, affiliate,
beneficiary or director, either directly or through the Issuers, or any
successor corporation thereof, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the Notes are solely
obligations of the Issuers, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, any stockholder, officer, employee,
partner, affiliate, beneficiary or director of the Issuers, or any successor
corporation or partnership thereof, because of the creation of the Debt hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or the Notes or implied therefrom, and that any and
all such personal liability of, and any and all claims against every
stockholder, officer, employee, partner, affiliate, beneficiary and director,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture, and the issuance of the
Notes. It is understood that this limitation on recourse is made expressly for
the benefit of any such shareholder, employee, officer, partner, affiliate,
beneficiary or director and may be enforced by any one or all of them.
Section 10.12. Successors.
----------
All agreements of the Issuers in this Indenture and the Notes shall
bind their respective successors. All agreements of the Trustee, any additional
trustee and any Paying Agents in this Indenture shall bind its successor.
Section 10.13. Multiple Counterparts.
---------------------
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 10.14. Table of Contents, Headings, etc.
--------------------------------
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.15. Separability.
------------
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
87
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date and year first written above.
PETRO STOPPING CENTERS HOLDINGS, L.P.
By __________________________________
Name:
Title:
PETRO HOLDINGS FINANCIAL CORPORATION
By __________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By ____________________________
Name:
Title:
88
EXHIBIT A
FORM OF NOTE
------------
PETRO STOPPING CENTERS HOLDINGS, L.P. AND PETRO HOLDINGS
FINANCIAL CORPORATION
15% Senior Discount Notes Due 2008
[Include the following legend for Global Notes only:
"THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREINAFTER.
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 IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY 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 SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF."]
[Include the following legend on all Notes that are Restricted Notes:]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(l), (2), (3), OR
(7) UNDER THE SECURITIES ACT) (AN "IAI"), OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
ADOPTED UNDER
1
THE SECURITIES ACT OR (D) IN THE CASE OF A HOLDER THAT IS NOT A DIRECT OR
INDIRECT TRANSFEREE OF AN INITIAL PURCHASER, THAT IT IS AN "ACCREDITED INVESTOR"
AS DEFINED IN RULE 501 (A) UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A ADOPTED UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
IAI THAT IS ACQUIRING THE NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN IAI, IN EITHER CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF U.S.
$250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, AND THAT,
PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 ADOPTED UNDER THE SECURITIES
ACT (IF AVAILABLE) OR ANOTHER AVAILABLE EXEMPTION UNDER THE SECURITIES ACT, OR
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT;
AND (2) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED
PURSUANT TO THE INDENTURE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
BY ITS ACQUISITION HEREOF, THE HOLDER FURTHER REPRESENTS THAT, ON EACH DAY FROM
THE DATE ON WHICH SUCH HOLDER ACQUIRES THE NOTE THROUGH AND INCLUDING THE DATE
ON WHICH SUCH HOLDER DISPOSES OF ITS INTEREST IN THE NOTE, EITHER THAT (A) IT IS
NOT A PLAN, AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS OF ANY SUCH
PLAN, OR A GOVERNMENT PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE
2
OR (B) ITS PURCHASE, HOLDING AND DISPOSITION OF SUCH NOTE WILL NOT RESULT IN A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
(OR, IN THE CASE OF A GOVERNMENT PLAN, ANY SUBSTANTIALLY SIMILAR FEDERAL, STATE
OR LOCAL LAW) FOR WHICH AN EXEMPTION IS NOT AVAILABLE.]
[Include the following legend on all Certificated Notes that are Restricted
Notes:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR SUCH
OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS IT MAY REASONABLY
REQUIRE IN FORM REASONABLY SATISFACTORY TO IT TO CONFIRM THAT THE TRANSFER
COMPLIED WITH THE FOREGOING RESTRICTIONS AS PROVIDED FOR IN THE INDENTURE."]
[Include the following legend on all Certificated Notes:
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR U.S. FEDERAL INCOME
TAX PURPOSES. FOR FURTHER INFORMATION REGARDING THE ISSUE PRICE, ISSUE DATE AND
THE YIELD TO MATURITY OF THIS NOTE, THE HOLDER OF THIS NOTE SHOULD CONTACT THE
OFFICE OF THE CHIEF FINANCIAL OFFICER OF PETRO STOPPING CENTERS HOLDINGS, L.P.
AT (▇▇▇) ▇▇▇-▇▇▇▇ AT ANY TIME AFTER AUGUST 1, 1999.]
3
NO. [___]
PRINCIPAL AMOUNT $[______________]
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto]
NOTE CUSIP NO. [144A: ▇▇▇▇▇▇▇▇▇]
[IAI:▇▇▇▇▇▇▇▇▇]
[Reg S:▇▇▇▇▇▇▇▇▇]
UNIT CUSIP NO.▇▇▇▇▇▇▇▇▇
Petro Stopping Centers Holdings, L.P., a Delaware limited partnership
and Petro Holdings Financial Corporation, a Delaware corporation, as joint and
several obligors, promise to pay to [___________], or registered assigns, the
principal sum of [__________________] Dollars [If the Note is a Global Note, add
the following, as revised by the Schedule of Increases and Decreases in Global
Note attached hereto], on August 1, 2008.
Interest Payment Dates: February 1 and August 1, beginning February 1,
2005
Record Dates: January 15 and July 15
Additional provisions of this Note are set forth on the other side of
this Note.
PETRO STOPPING CENTERS HOLDINGS, L.P.
By:____________________________________________
Name:
Title:
By:____________________________________________
Name:
Title:
PETRO HOLDINGS FINANCIAL CORPORATION
By:____________________________________________
Name:
Title:
By:____________________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
State Street Bank and Trust Company as Trustee, certifies
that this is one of the Notes referred to in the Indenture.
4
By: _______________________ Date: _____________, 1999
Authorized Signatory
5
FORM OF REVERSE SIDE OF NOTE
15% Senior Discount Notes Due 2008
1. Interest
--------
Interest will not accrue or be payable on the Notes prior to August 1,
2004. Petro Stopping Centers Holdings, L.P., a Delaware limited partnership
(the "Company"), and Petro Holdings Financial Corporation, a Delaware
corporation ("PFC" and together with the Company, the "Issuers"), jointly and
severally promise, subject to the preceding sentence, to pay interest on the
principal amount of this Note at the rate per annum shown above.
The Issuers will pay interest semiannually in arrears on each Interest
Payment Date of each year commencing February 1, 2005. Interest on the Notes
will accrue from the most recent date to which interest has been paid on the
Notes or, if no interest has been paid, from August 1, 2004. The Issuers shall
pay interest on overdue principal or premium, if any (plus interest on such
interest to the extent lawful), at the rate borne by the Notes to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve 30-
day months. For U.S. federal income tax purposes, you will be required to
include original issue discount on a Note in gross income for each taxable year
in which you hold the Note even though cash interest on the Note does not begin
to accrue until August 1, 2004, and you will receive no cash interest payments
until February 1, 2005.
The Issuers shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and, to the extent
such payments are lawful, interest on overdue installments of interest, without
regard to any applicable grace periods ("Defaulted Interest") at the rate of
------------------
2.0% per annum in excess of the rate shown on this Note, as provided in the
Indenture.
2. Method of Payment
-----------------
By at least 10:00 a.m. (New York City time) on the date on which any
principal of, premium, if any, or interest on any Note is due and payable, the
Issuers shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal, premium, if any, and/or interest. The Issuers
will pay interest (except Defaulted Interest) to the Persons who are registered
Holders of Notes at the close of business on the Record Date preceding the
interest payment date even if Notes are canceled, repurchased or redeemed after
the record date and on or before the relevant Interest Payment Date. Holders
must surrender Notes to a Paying Agent to collect principal payments and premium
payments, if any. The Issuers will pay principal and interest in U.S. legal
tender.
Payments in respect of Notes represented by a Global Note (including
principal, premium, if any, and interest) will be made by the transfer of
immediately available funds to the accounts specified by the Depository Trust
Company. The Issuers will make all payments in respect of a Certificated Note
(including principal, premium, if any, the Damage Amount, if any, and interest)
at the office or agency of the Issuers in The City of New York maintained for
such purposes, which, initially, will be the office of the Trustee or an agent
thereof; provided,
6
however, that payment of interest and the Damage Amount, if any, may be made at
the option of Holdings by check mailed to the Person entitled thereto as shown
on the register of the Notes maintained by the Registrar.
3. Paying Agent and Registrar
--------------------------
Initially, State Street Bank and Trust Company (the "Trustee"), will
act as Trustee, Paying Agent and Registrar. The Issuers may appoint and change
any Paying Agent, Registrar or co-registrar without notice to any Holder. The
Company may act as Paying Agent, Registrar or co-registrar.
4. Indenture
---------
The Issuers issued the Notes under an Indenture dated as of July 23,
1999, (as it may be amended or supplemented from time to time in accordance with
the terms thereof, the "Indenture"), among the Issuers and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
------
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act").
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the Act for a statement of those terms. Each
Holder by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture.
The Notes are general unsecured senior obligations of the Issuers.
Subject to the conditions set forth in the Indenture and without the consent of
the Holders, the Issuers may issue an unlimited principal amount of Add-On
Notes. All Notes will be treated as a single class of securities under the
Indenture.
The Indenture imposes certain limitations on, among other things: the
ability of the Company and its Restricted Subsidiaries to incur Debt, to make
Restricted Payments, to incur Liens, to issue or sell Capital Interests of
Restricted Subsidiaries, to consummate Asset Sales, enter into transactions with
Affiliates, enter into Sale and Leaseback transactions, create Unrestricted
Subsidiaries, consolidate or merge or transfer or convey all or substantially
all of the Company's and its Restricted Subsidiaries' assets.
5. Redemption
----------
The Notes are subject to redemption, at the option of the Issuers, in
whole or in part, at any time, upon not less than 30 nor more than 60 days
notice, at a Redemption Price equal to: (A) if the Redemption Date is prior to
August 1, 2004, the Accreted Value of the Notes, plus the Make-Whole Premium, as
of the Redemption Date; or (B) if the Redemption Date is on or after August 1,
2004, the following Redemption Prices (expressed as percentages of principal
amount at Stated Maturity) set forth below, plus accrued and unpaid interest, if
any, to the Redemption Date (subject to the right of Holders of record on the
relevant regular record date to receive interest due on an interest payment date
that is on or prior to the Redemption Date), if redeemed during the 12 month
period beginning on August 1, of the years indicated:
7
YEAR Redemption Price
2004 107.500%
2005 105.000%
2006 102.500%
2007 and thereafter 100.000%
In addition to the optional redemption of the Notes in accordance with
the provisions of the preceding paragraph, prior to August 1, 2002, the Issuers
may, with the net proceeds of a Public Equity Offering of Qualified Capital
Interests in either Issuer or a Successor Entity, redeem all, but not less than
all, of the aggregate principal amount of the outstanding Notes at a Redemption
Price equal to 115.0% of the Accreted Value thereof; provided, that any such
redemption occurs within 90 days following the closing of any such Public Equity
Offering.
If the Issuers are not redeeming all of the Notes, the Trustee shall
select the Notes to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed
or, if the Notes are not then listed on a national securities exchange, on a pro
rata basis, by lot or in another fair and reasonable manner chosen at the
discretion of the Trustee. The Notes will be redeemable in whole or in part
upon not less than 30 nor more than 60 days' prior written notice, mailed by
first class mail to a holder's address as it shall appear on the register
maintained by the Registrar of the Notes. On and after any redemption date,
Accreted Value will cease to accrete or interest will cease to accrue, as the
case may be, on the Notes or portions thereof called for redemption unless the
Issuers shall fail to redeem any such Note.
6. Repurchase Provisions
---------------------
Repurchase Upon a Change of Control. Upon the occurrence of a Change
of Control, Holdings will make an Offer to Purchase all of the outstanding Notes
at a Purchase Price in cash equal to: (x) 101% of the Accreted Value thereof, if
the Purchase Date is on or prior to August 1, 2004, or (y) 101% of the principal
amount at Stated Maturity thereof, together with accrued interest, if any, to
the Purchase Date if the Purchase Date is after August 1, 2004. For purposes of
the foregoing, an Offer to Purchase shall be deemed to have been made if: (i)
within 30 days following the date of the consummation of a transaction or series
of transactions that constitutes a Change of Control, Holdings commences an
Offer to Purchase all outstanding Notes at the Purchase Price (provided that the
running of such 30-day period shall be suspended, for up to a maximum of 30
days, during any period when the commencement of such Offer to Purchase is
delayed or suspended by reason of any court's or governmental authority's review
of or ruling on any materials being employed by Holdings to effect such Offer to
Purchase, so long as Holdings has used and continues to use its best efforts to
make and conclude such Offer to Purchase promptly) and (ii) all Notes properly
tendered pursuant to the Offer to Purchase are purchased on the terms of such
Offer to Purchase.
8
Repurchase With Proceeds from Asset Sales. Any Net Cash Proceeds from
any Asset Sale that are not used to reinvest in Replacement Assets and/or repay
Debt of a Restricted Subsidiary shall constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $10,000,000, Holdings shall make an
Offer to Purchase, from all Holders, Notes: (x) having an aggregate Accreted
Value as of the Purchase Date, if the Purchase Date is on or prior to August 1,
2004, or (y) in an aggregate principal amount at Stated Maturity, if the
Purchase Date is after August 1, 2004, in either case equal to the Excess
Proceeds, at a Purchase Price in cash equal to: (x) 100% of the Accreted Value
thereof, if the Purchase Date is on or prior to August 1 , 2004, or (y) 100% of
the principal amount thereof, together with accrued interest, if any, to the
Purchase Date, if the Purchase Date is after August 1, 2004. If the aggregate
Purchase Price of Notes surrendered by Holders exceeds the amount equal to the
Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis. To the extent that any amount of Excess Proceeds remains after
completion of such Offer to Purchase, Holdings may use such remaining amount for
general corporate purposes, and the amount of Excess Proceeds shall be reset to
zero.
Holdings will comply, to the extent applicable, with the requirements
of Rule 14e-1 under the Exchange Act and other securities laws or regulations in
the event that an Offer to Purchase is required in connection with a Change of
Control or an Asset Sale.
7. Denominations; Transfer; Exchange
---------------------------------
The Notes are in fully registered form without coupons in
denominations of principal amount of $1,000 and any integral multiple thereof.
A Holder may transfer or exchange Notes only in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Notes selected for redemption (except, in the case of a Note
to be redeemed in part, the portion of the Note not to be redeemed) for a period
beginning 15 days before the mailing of a notice of Notes to be redeemed and
ending on the date of such mailing or (ii) any Notes for a period beginning 15
days before an interest payment date and ending on such interest payment date.
8. Persons Deemed Owners
---------------------
The registered holder of this Note may be treated as the owner of it
for all purposes.
9. Unclaimed Money
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Issuers at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Issuers and not to the Trustee for payment.
9
10. Discharge Prior to Redemption or Maturity
-----------------------------------------
Subject to certain conditions set forth in the Indenture, the Issuers
at any time may terminate some or all of their obligations under the Notes and
the Indenture if the Issuers deposit with the Trustee U.S. legal tender or U.S.
Government Obligations for the payment of principal and interest on the Notes to
redemption or maturity, as the case may be.
11. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal amount of the then outstanding Notes and (ii)
any default (other than with respect to nonpayment or in respect of a provision
that cannot be amended without the written consent of each Holder affected) or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in principal amount of the then outstanding Notes.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Holder, the Issuers and the Trustee may amend the Indenture or the Notes to,
among other things, to evidence the succession of another Person to the Issuers
and the assumption by any such successor of the covenants of the Issuers in the
Indenture and in the Notes; to add to the covenants of the Issuers for the
benefit of the Holders, or to surrender any right or power herein conferred upon
the Issuers; to add additional Events of Default; to provide for uncertificated
Notes in addition to or in place of the certificated Notes; to evidence and
provide for the acceptance of appointment under the Indenture by a successor
Trustee; to secure the Notes; to cure any ambiguity, to correct or supplement
any provision in the Indenture which may be defective or inconsistent with any
other provision in the Indenture, or to make any other provisions with respect
to matters or questions arising under the Indenture, provided that such actions
pursuant to this clause shall not adversely affect the interests of the Holders
in any material respect; to issue Add-On Notes or Exchange Notes; or to comply
with any requirements of the Commission in order to effect and maintain the
qualification of the Indenture under the Trust Indenture Act.
12. Defaults and Remedies
---------------------
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount at Stated Maturity of the
outstanding Notes may declare all the Notes to be due and payable immediately.
Certain events of bankruptcy or insolvency are Events of Default which will
result in the Notes being due and payable immediately upon the occurrence of
such Events of Default.
Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes
unless it receives reasonable indemnity or security. Subject to certain
limitations, Holders of a majority in principal amount at Stated Maturity of the
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
10
13. Trustee Dealings with the Issuers
---------------------------------
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Issuers or their Affiliates and may otherwise deal with the
Issuers or their affiliates with the same rights it would have if it were not
Trustee.
14. No Recourse Against Others
--------------------------
No recourse for the payment of the principal, Redemption Price or
Purchase Price of, and accrued interest on, any of the Notes, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Issuers in this Indenture or in any
supplemental indenture, or in any Guarantee, or in any of the Notes, or because
of the creation of any Debt represented thereby, shall be had against any
stockholder, officer, director, partner, affiliate, beneficiary or employee, as
such, past, present or future, of the Issuers or of any successor corporation or
against the property or assets of any such stockholder, officer, employee,
partner, affiliate, beneficiary or director, either directly or through the
Issuers, or any successor corporation thereof, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
Notes are solely obligations of the Issuers, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, any stockholder,
officer, employee, partner, affiliate, beneficiary or director of the Issuers,
or any successor corporation or partnership thereof, because of the creation of
the Debt hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or the Notes or implied therefrom, and
that any and all such personal liability of, and any and all claims against
every stockholder, officer, employee, partner, affiliate, beneficiary and
director, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture, and the issuance of the
Notes. It is understood that this limitation on recourse is made expressly for
the benefit of any such shareholder, employee, officer, partner, affiliate,
beneficiary or director and may be enforced by any one or all of them.
15. Authentication
--------------
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
16. 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
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
11
17. CUSIP Numbers
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Issuers have caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
18. Governing Law
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATION LAW, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAW
RULES.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Note in larger type. Requests may be made to:
Petro Stopping Centers Holdings, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President of Finance
12
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the
Issuers. The agent may substitute another to act for him.
Date:____________________ Your Signature:___________________
Signature Guarantee:_________________________________
(Signature must be guaranteed)
_______________________________________________________________________________
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
13
[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been
made:
Date of Amount of decrease in Principal Amount of increase in Principal Principal Amount of this Global Signature of authorized
Exchange Amount of this Global Note Amount of this Global Note Note following such decrease or signatory of Trustee or
increase Note Custodian
________ _______________________________ _______________________________ _______________________________ _______________________
14
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.9 or 4.18 of the Indenture, check either box:
[_] [_]
4.9 4.18
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.9 or 4.18 of the Indenture, state the amount in
principal amount (must be integral multiple of $1,000): $
Date: __________ Your Signature ____________________________
(Sign exactly as your name appears on the
other side of the Note)
Signature Guarantee: _______________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
15
EXHIBIT B-1
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO BENEFICIAL OWNER OR TO THE COMPANY
-------------------------------------------------------------------------------
[Date]
State Street Bank & Trust Company
Corporate Trust
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Petro Stopping Centers
Re: Petro Stopping Centers Holdings, L.P. (the "Company") and
Petro Holdings Financial Corporation ("Holdings" and together with the
Company, the "Issuers") 15% Senior Discount Notes Due 2008 (the
--------------------------------------------------
"Notes")
--------
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July 23, 1999
(as amended and supplemented from time to time, the "Indenture"), among the
Issuers, as issuers, and State Street Bank and Trust Company, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to $____ aggregate principal amount of Notes which
are held in the name of the undersigned (the "Transferor") and evidenced by one
or more Certificated Notes. The Transferor has requested an exchange or
transfer of such Certificated Notes in the form of an equal principal amount of
Notes evidenced by one or more Certificated Notes to be delivered to [in the
case of an exchange of Certificated Notes without transfer: the Transferor's own
account, without transfer] [in the case of a transfer of such Certificated Notes
to the Company or any of its Subsidiaries: to the Company or one of its
Subsidiaries, as instructed by the Transferor].
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
1
EXHIBIT B-2
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO BENEFICIAL OWNER OR TO THE COMPANY
-------------------------------------------------------------------------------
[Date]
State Street Bank & Trust Company
Corporate Trust
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Petro Stopping Centers
Re: Petro Stopping Centers Holdings, L.P. (the "Company") and
Petro Holdings Financial Corporation ("Holdings" and together with the
Company, the "Issuers") 15% Senior Discount Notes Due 2008 (the
--------------------------------------------------
"Notes")
--------
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July 23, 1999
(as amended and supplemented from time to time, the "Indenture"), among the
Issuers, as issuers, and State Street Bank and Trust Company, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to $___ aggregate principal amount of Notes which
represents an interest in a Global Note beneficially owned by the undersigned
(the "Transferor"). The Transferor has requested an exchange or transfer of such
beneficial interest in the Global Note in the form of an equal principal amount
of Notes evidenced by one or more Certificated Notes, to be delivered to [in the
case of an exchange of a beneficial interest without transfer: the Transferor's
own account, without transfer and in connection therewith, the Transferor hereby
certifies that it is the beneficial owner of such Notes] [in the case of a
transfer of a beneficial interest in a Global Note to the Company or any of its
Subsidiaries: to the Company or one of its Subsidiaries, as instructed by the
Transferor].
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
1
EXHIBIT C
---------
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
------------------------------------------------
[Date]
State Street Bank & Trust Company
Corporate Trust
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Petro Stopping Centers
Re: Petro Stopping Centers Holdings, L.P. (the "Company") and
Petro Holdings Financial Corporation ("Holdings" and together with the
Company, the "Issuers") 15% Senior Discount Notes Due 2008 (the
--------------------------------------------------
"Notes")
--------
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July 23, 1999
(as amended and supplemented from time to time, the "Indenture"), among the
Issuers, as issuers, and State Street Bank and Trust Company, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to $___ aggregate principal amount of Notes [in
the case of an exchange or transfer of an interest in a Global Note: which
represents an interest in a Global Note beneficially owned by the undersigned
(the "Transferor")] [in the case of an exchange or transfer of Certificated
Notes: which are held in the name of the undersigned (the "Transferor") and
evidenced by one or more Certificated Notes]. The Transferor has requested an
exchange or transfer of such [in the case of an exchange or transfer of an
interest in a Global Note: beneficial interest in the Global Note][ in the case
of an exchange or transfer of Certificated Notes: Certificated Note(s)] in the
form of an equal principal amount of Notes evidenced by [in the case of
transfers of Certificated Notes for beneficial interests in a Global Note
pursuant to Section 2.8(c) of the Indenture: a beneficial interest in a Global
Note][in the case of all other transfers or exchanges: one or more Certificated
Notes], to be delivered to such Person as the Transferor instructs the Trustee.
In connection with such request, and with respect to such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), to a transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, and the transferee, as well as any such
account, is a "qualified institutional buyer" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
1
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
2
EXHIBIT D-1
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
----------------------------------------------------------------
TO INSTITUTIONAL ACCREDITED INVESTORS
-------------------------------------
[Date]
State Street Bank & Trust Company
Corporate Trust
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Petro Stopping Centers
Re: Petro Stopping Centers Holdings, L.P. (the "Company") and
Petro Holdings Financial Corporation ("Holdings" and together with the
Company, the "Issuers") 15% Senior Discount Notes Due 2008 (the
--------------------------------------------------
"Notes")
--------
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July 23, 1999
(as amended and supplemented from time to time, the "Indenture"), among the
Issuers, as issuers, and State Street Bank and Trust Company, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to $___ aggregate principal amount of Notes (the
"Transferred Notes") [in the case of an exchange or transfer of an interest in a
Global Note: which represents an interest in a Global Note beneficially owned
by [name of beneficial owner (the "Transferor")]] [in the case of an exchange or
transfer of Certificated Notes: which are held in the name of [name of
registered owner] (the "Transferor") and evidenced by one or more Certificated
Notes]. The Transferor has requested an exchange or transfer of such [in the
case of an exchange or transfer of an interest in a Global Note: beneficial
interest in the Global Note][in the case of an exchange or transfer of
Certificated Notes: Certificated Note(s)] in the form of an equal principal
amount of Notes evidenced by one or more Certificated Notes, to be delivered to
the undersigned (the "Transferee").
Upon transfer, the Transferred Notes should be registered in the name
of the Transferee as follows:
Name: ___________________________________ [as nominee for the
transferee]/1/
Address: ________________________________
_________________________________
/1/ Strike if inapplicable.
1
Taxpayer ID Number: _____________________
The Transferee represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")) purchasing for our own account or for the account of
such an institutional "accredited investor" at least $250,000 principal amount
of the Notes, and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the Notes and we
invest in or purchase securities similar to the Notes in the normal course of
our business. We and any accounts for which we are acting are each able to bear
the economic risk of our or its investment.
2. We understand that the Notes have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date (the "Resale Restriction
Termination Date") which is two years after the later of the date of original
issue and the last date on which the Issuers or any affiliate of the Issuers was
the owner of such Notes (or any predecessor thereto) only (a) to the Issuers or
any subsidiaries thereof, (b) inside the United States to a qualified
institutional buyer in compliance with Rule 144A adopted under the Securities
Act, (c) inside the United States to an accredited investor that delivers a
certification substantially in the form of this certification, (d) outside the
United States in compliance with Regulation S adopted under the Securities Act,
(e) pursuant to the exemption from registration provided by Rule 144 adopted
under the Securities Act (if available) or another available exemption under the
Securities Act, or (f) pursuant to an effective registration statement under the
Securities Act, subject to the Issuer's and the trustee's right prior to any
such offer, sale or transfer pursuant to clauses (d) and (e) to require the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them. As used herein, the terms "Offshore Transaction"
and "United States" have the meaning given to them by Regulation S adopted under
the Securities Act." The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:___________________________
______________________________
Authorized Signature
2
EXHIBIT D-2
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
----------------------------------------------------------------
TO ACCREDITED INVESTORS
-----------------------
[Date]
State Street Bank & Trust Company
Corporate Trust
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Petro Stopping Centers
Re: Petro Stopping Centers Holdings, L.P. (the "Company") and Petro
Holdings Financial Corporation ("Holdings" and together with the
Company, the "Issuers") 15% Senior Discount Notes Due 2008 (the
--------------------------------------------------
"Notes")
--------
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July 23, 1999
(as amended and supplemented from time to time, the "Indenture"), among the
Issuers, as issuers, and State Street Bank and Trust Company, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to $___ aggregate principal amount of Notes (the
"Transferred Notes") [in the case of an exchange or transfer of an interest in a
Global Note: which represents an interest in a Global Note beneficially owned
by [name of beneficial owner (the "Transferor")]] [in the case of an exchange or
transfer of Certificated Notes: which are held in the name of [name of
registered owner] (the "Transferor") and evidenced by one or more Certificated
Notes]. The Transferor has requested an exchange or transfer of such [in the
case of an exchange or transfer of an interest in a Global Note: beneficial
interest in the Global Note][in the case of an exchange or transfer of
Certificated Notes: Certificated Note(s)] in the form of an equal principal
amount of Notes evidenced by one or more Certificated Notes, to be delivered to
the undersigned (the "Transferee").
Upon transfer, the Transferred Notes should be registered in the name
of the Transferee as follows:
Name: ___________________________________ [as nominee for the
transferee]/2/
Address: ________________________________
_______________________________
/2/ Strike if inapplicable.
1
Taxpayer ID Number: _____________________
The Transferee represents and warrants to you that:
1. We are an "accredited investor" (as defined in Rule 501(a)(4),
(5), (6) or (8) under the Securities Act of 1933, as amended (the "Securities
Act")) purchasing for our own account or for the account of such an "accredited
investor", and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the Notes and we
invest in or purchase securities similar to the Notes in the normal course of
our business. We and any accounts for which we are acting are each able to bear
the economic risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Notes to offer, sell or otherwise
transfer such Notes prior to the date (the "Resale Restriction Termination
Date") which is two years after the later of the date of original issue and the
last date on which the Issuers or any affiliate of the Issuers was the owner of
such Notes (or any predecessor thereto) only (a) to the Issuers or any
subsidiaries thereof, (b) inside the United States to a qualified institutional
buyer in compliance with Rule 144A adopted under the Securities Act, (c) inside
the United States to an accredited investor that delivers a certification
substantially in the form of this certification, (d) outside the United States
in compliance with Regulation S adopted under the Securities Act, (e) pursuant
to the exemption from registration provided by Rule 144 adopted under the
Securities Act (if available) or another available exemption under the
Securities Act, or (f) pursuant to an effective registration statement under the
Securities Act, subject to the Issuer's and the trustee's right prior to any
such offer, sale or transfer pursuant to clauses (d) and (e) to require the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them. As used herein, the terms "Offshore Transaction"
and "United States" have the meaning given to them by Regulation S adopted under
the Securities Act." The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:_______________________________
____________________
Authorized Signature
2
EXHIBIT E
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO
----------------------------------------------------------------------------
REGULATION S
------------
[Date]
State Street Bank & Trust Company
Corporate Trust
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Petro Stopping Centers
Re: Petro Stopping Centers Holdings, L.P. (the "Company") and Petro
Holdings Financial Corporation ("Holdings" and together with the
Company, the "Issuers") 15% Senior Discount Notes Due 2008 (the
--------------------------------------------------
"Notes")
--------
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July 23, 1999
(as amended and supplemented from time to time, the "Indenture"), among the
Issuers, as issuers, and State Street Bank and Trust Company, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to $___ aggregate principal amount of Notes [in
the case of an exchange or transfer of an interest in a Global Note: which
represents an interest in a Global Note beneficially owned by the undersigned
(the "Transferor")] [in the case of an exchange or transfer of Certificated
Notes: which are held in the name of the undersigned (the "Transferor") and
evidenced by one or more Certificated Notes]. The Transferor has requested an
exchange or transfer of such [in the case of an exchange or transfer of an
interest in a Global Note: beneficial interest in the Global Note][ in the case
of an exchange or transfer of Certificated Notes: Certificated Note(s)] in the
form of an equal principal amount of Notes evidenced by one or more Certificated
Notes, to be delivered to such Person as the Transferor instructs the Trustee.
In connection with the foregoing, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor
represents that:
(a) the offer of the Notes was not made to a person in the United
States;
(b) either (i) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee was outside
the United States or (ii) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither the
Transferor nor any person acting on its behalf knows that the transaction
has been pre-arranged with a buyer in the United States;
1
(c) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(e) the Transferor is the beneficial owner of the principal amount of
Notes being transferred.
In addition, if the sale is made during a "distribution compliance
period" (as defined in Regulation S) and the provisions of Rule 904(b)(1) or
Rule 904(b)(2) of Regulation S are applicable thereto, the Transferor confirms
that such sale has been made in accordance with the applicable provisions of
Rule 904(b)(1) or Rule 904(b)(2), as the case may be.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
2
EXHIBIT F
FORM OF RULE 144 CERTIFICATION
------------------------------
[Date]
State Street Bank & Trust Company
Corporate Trust
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Petro Stopping Centers
Re: Petro Stopping Centers Holdings, L.P. (the "Company") and Petro
Holdings Financial Corporation ("Holdings" and together with the
Company, the "Issuers") 15% Senior Discount Notes Due 2008 (the
--------------------------------------------------
"Notes")
--------
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July 23, 1999
(as amended and supplemented from time to time, the "Indenture"), among the
Issuers, as issuers, and State Street Bank and Trust Company, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to $___ aggregate principal amount of Notes [in
the case of an exchange or transfer of an interest in a Global Note: which
represents an interest in a Global Note beneficially owned by the undersigned
(the "Transferor")] [in the case of an exchange or transfer of Certificated
Notes: which are held in the name of the undersigned (the "Transferor") and
evidenced by one or more Certificated Notes]. The Transferor has requested an
exchange or transfer of such [in the case of an exchange or transfer of an
interest in a Global Note: beneficial interest in the Global Note][ in the case
of an exchange or transfer of Certificated Notes: Certificated Note(s)] in the
form of an equal principal amount of Notes evidenced by one or more Certificated
Notes, to be delivered to such Person as the Transferor instructs the Trustee.
In connection with the foregoing, we confirm that such sale has been effected
pursuant to and in accordance with Rule 144 under the Securities Act.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
3
_______________________________
Authorized Signature
4