EXHIBIT 4.6
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PETRO STOPPING CENTERS, ▇.▇.
▇▇▇▇▇ FINANCIAL CORPORATION
as Issuers,
and
STATE STREET BANK AND TRUST COMPANY
as Trustee
____________________
INDENTURE
Dated as of January 30, 1997
____________________
$135,000,000
10 1/2 % Senior Notes due 2007
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TABLE OF CONTENTS
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Section Page
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
1.1. Definitions........................................................ 1
1.2. Other Definitions.................................................. 26
1.3. Incorporation by Reference of Trust Indenture Act.................. 26
1.4. Rules of Construction.............................................. 27
ARTICLE II. THE NOTES
2.1. Dating; Incorporation of Form in Indenture......................... 27
2.2. Execution and Authentication....................................... 28
2.3. Registrar and Paying Agent......................................... 29
2.4. Paying Agent to Hold Money in Trust................................ 29
2.5. Noteholder Lists................................................... 30
2.6. Transfer and Exchange.............................................. 30
2.7. Replacement Notes.................................................. 31
2.8. Outstanding Notes.................................................. 31
2.9. Temporary Notes.................................................... 32
2.10. Cancellation....................................................... 32
2.11. Defaulted Interest................................................. 32
2.12. Deposit of Moneys.................................................. 33
2.13. CUSIP Number....................................................... 33
2.14. Book-Entry Provisions for Global Notes............................. 33
2.15. Special Transfer Provisions........................................ 34
ARTICLE III. REDEMPTION
3.1. Notices to Trustee................................................. 36
3.2. Selection by Trustee of Notes to Be Redeemed....................... 37
3.3. Notice of Redemption............................................... 37
3.4. Effect of Notice of Redemption..................................... 38
3.5. Deposit of Redemption Price........................................ 38
3.6. Notes Redeemed in Part............................................. 39
3.7. Optional Redemption................................................ 39
ARTICLE IV.COVENANTS
4.1. Payment of Notes................................................... 39
4.2. SEC Reports........................................................ 40
4.3. Waiver of Stay, Extension or Usury Laws............................ 40
4.4. Compliance Certificate............................................. 41
4.5. Taxes.............................................................. 42
4.6. Limitation on Debt................................................. 42
4.7. Limitation on Issuance and Sale of Capital Interests
in Restricted Subsidiaries....................................... 43
4.8. Limitation on Restricted Payments.................................. 43
4.9. Limitation on Asset Sales.......................................... 46
4.10. Limitation on Transactions with Affiliates......................... 48
4.11. Limitation on Liens................................................ 49
4.12. [INTENTIONALLY OMITTED]............................................ 49
4.13. Limitation on Creation of Unrestricted Subsidiaries................ 49
4.14. Limitation on Dividends and Other Payments Affecting
Restricted Subsidiaries.......................................... 50
4.15. Limitation on Sale and Lease-Back Transactions..................... 51
4.16. Payments for Consent............................................... 51
4.17. Partnership and Corporate Existence................................ 52
4.18. Change of Control.................................................. 52
4.19. Maintenance of Office or Agency.................................... 53
4.20. Maintenance of Properties and Insurance............................ 54
ARTICLE V. SUCCESSOR CORPORATION
5.1. Limitation on Merger, Conveyance, Transfer and Lease............... 55
5.2. Successor Person Substituted....................................... 56
ARTICLE VI. DEFAULTS AND REMEDIES
6.1. Events of Default.................................................. 57
6.2. Acceleration....................................................... 59
6.3. Other Remedies..................................................... 59
6.4. Waiver of Past Defaults and Events of Default...................... 60
6.5. Control by Majority................................................ 60
6.6. Limitation on Suits................................................ 60
6.7. Rights of Holders to Receive Payment............................... 61
6.8. Collection Suit by Trustee......................................... 61
6.9. Trustee May File Proofs of Claim................................... 61
6.10. Priorities......................................................... 62
6.11. Undertaking for Costs.............................................. 62
6.12. Restoration of Rights and Remedies................................. 63
ARTICLE VII. TRUSTEE
7.1. Duties of Trustee.................................................. 63
7.2. Rights of Trustee.................................................. 64
7.3. Individual Rights of Trustee....................................... 65
7.4. Trustee's Disclaimer............................................... 65
7.5. Notice of Defaults................................................. 65
7.6. Reports by Trustee to Holders...................................... 66
7.7. Compensation and Indemnity......................................... 66
7.8. Replacement or Trustee............................................. 67
7.9. Successor Trustee by Consolidation,
Merger or Conversion............................................. 68
7.10. Eligibility; Disqualificaition..................................... 68
7.11. Preferential Collection of Claims Against Issuers.................. 68
7.12. Paying Agents...................................................... 68
ARTICLE VIII. AMENDMENT, SUPPLEMENT AND WAIVER
8.1. Without Consent of Holders......................................... 69
8.2. With Consent of Holders............................................ 70
8.3. Compliance with Trust Indenture Act................................ 71
8.4. Revocation and Effect of Consents.................................. 71
8.5. Notation on or Exchange of Notes................................... 72
8.6. Trustee To Sign Amendments, etc.................................... 72
ii
ARTICLE IX. DISCHARGE OF INDENTURE; DEFEASANCE
9.1. Discharge of Indenture............................................. 72
9.2. Legal Defeasance................................................... 73
9.3. Covenant Defeasance................................................ 74
9.4. Conditions to Defeasance or Covenant Defeasance.................... 74
9.5. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.............. 76
9.6. Reinstatement...................................................... 77
9.7. Moneys Held by Paying Agent........................................ 77
9.8. Moneys Held by Trustee............................................. 77
ARTICLE X. GUARANTEE OF NOTES
10.1. Guarantee.......................................................... 78
10.2. Execution and Delivery of Guarantees............................... 79
10.3. Limitation of Guarantee............................................ 80
10.4. Release of Guarantor............................................... 80
ARTICLE XI. MISCELLANEOUS
11.1. Trust Indenture Act Controls....................................... 81
11.2. Notices............................................................ 81
11.3. Communications by Holders with Other Holders....................... 82
11.4. Certificate and Opinion as to Conditions Precedent................. 82
11.5. Statements Required in Certificate and Opinion..................... 83
11.6. When Treasury Notes Disregarded.................................... 84
11.7. Rules by Trustee and Agents........................................ 84
11.8. Business Days; Legal Holidays...................................... 84
11.9. Governing Law...................................................... 84
11.10. No Adverse Interpretation of Other Agreements...................... 85
11.11. No Recourse Against Others......................................... 85
11.12. Successors......................................................... 86
11.13. Multiple Counterparts.............................................. 86
11.14. Table of Contents, Headings, etc................................... 86
11.15. Separability....................................................... 86
iii
SCHEDULE 1 - PERMITTED AFFILIATE AGREEMENTS
EXHIBIT A - FORM OF NOTE
EXHIBIT B - FORM OF LEGEND FOR GLOBAL NOTES
EXHIBIT C - FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
EXHIBIT D - FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S
EXHIBIT E - FORM OF GUARANTEE
iv
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.8; 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) 11.3
(c) 11.3
313 (a) 7.6
(b)(1) N.A.
(b)(2) 7.6
(c) 7.6; 11.2
(d) 7.6
314 (a) 4.2; 4.4; 11.2
(b) N.A.
(c)(1) 11.4; 11.5
(c)(2) 11.4; 11.5
(c)(3) N.A.
(d) N.A.
(e) 11.5
(f) N.A.
315 (a) 7.1; 7.2
(b) 7.5; 11.2
(c) 7.1
(d) 6.5; 7.1; 7.2
(e) 6.11
316 (a) (last sentence) 11.6
(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) 11.1
N.A. means Not Applicable
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NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
INDENTURE, dated as of January 30, 1997, between PETRO STOPPING CENTERS,
L.P., a Delaware limited partnership (the "Company") and PETRO 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' 10 1/2% Senior Notes
due 2007 (the "Notes").
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.1. Definitions.
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"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.
"Additional Interest" means additional interest on the Notes, which the
Issuers agree to pay pursuant to Section 4 of the Registration Rights Agreement.
"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 the closing of the Offering
in connection with the Transactions), 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
expense (determined as if such 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. 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 Assets" of a Guarantor at any date shall mean the lesser of
the amount by which (x) the fair value of the property of such Guarantor exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities),
but excluding liabilities under the Guarantee, of such Guarantor at such date
and (y) the present fair salable value of the assets of such Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Guarantor on its debts (after giving effect to all other fixed and
contingent liabilities and after giving effect to any collection from any
Subsidiary of such Guarantor in respect of the obligations of such Subsidiary
under the Guarantee), excluding Debt in respect of the Guarantee, as they become
absolute and matured.
"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) the net income
(but not the net loss) of any Restricted Subsidiary to the extent that the
payment of dividends or distributions to such Person is restricted, directly or
indirectly, except to the extent that such net income could be paid to the
Company or a Restricted Subsidiary thereof by loans, advances, intercompany
transfers, principal repayments or otherwise; and (vii) with
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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). In computing
Adjusted Net Income under Section 4.8(a)(iii) hereof, 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 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.
"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 of Section 5.1 hereof that
constitutes a disposition of all or substantially all of the assets of the
Issuers and their 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; and (e) sales of Unrestricted
Subsidiaries. For purposes of this definition, any series of
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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.
"Capital Lease Obligation" of any Person means the obligation to pay rent or
other payment amounts under a lease of
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(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 Affiliates.
"Change of Control" means the occurrence of any of the following events:
(i) prior to a Public Equity Offering, either (A) any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as such term is used in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of a greater percentage of the
Common Interests in the Company than such percentage constituting the
"beneficial ownership" of the Permitted Holders in the aggregate or (B) any
"person" or "group" other than the 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) the Permitted Holders
and the ▇▇▇▇▇▇▇▇ Group, in the aggregate, cease to be the "beneficial owner",
directly or indirectly, of at least 50% of the Common Interests in the Company
or any Successor Entity (on a fully-diluted basis) and (B) the Permitted Holders
in the aggregate cease to be the "beneficial owner", directly or indirectly, of
at least 30% of the Common Interests in the Company or any Successor Entity;
(iii) 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's Board of Directors then in office; or (iv)
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.
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"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 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 date of execution of this Indenture is located at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Credit Agreement" means a secured or unsecured credit agreement providing,
inter alia, for revolving credit loans, term loans and/or letters of credit
between the Company 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.
"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 Debt of such
Person for money borrowed, excluding any trade payables, other current
liabilities incurred in the ordinary course of business and any
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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 Debt 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 (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. Debt of the Company shall include the
Debt Warrants.
"Debt Warrants" means the exchangeable debt warrants of the Company and PFC
issued with the Existing Notes.
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"Default" means any event that is, or after notice or passage of time, or
both, would be, any Event of Default.
"Depository" means, with respect to the Notes issued in the form of one or
more Global Notes, The Depository Trust Company or another Person designated as
Depository by the Company, which Person must be a clearing agency registered
under the Exchange Act.
"Disinterested Director" means, with respect to any proposed transaction
between (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 from 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 (including the Trustee in its
corporate capacity) (i) that is organized and existing under the laws of the
United States of America or Canada, or any state, territory, province or
possession thereof, (ii) that 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 and (iii) 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; (iii) repurchase obligations
-8-
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 (including the bank holding company of the
Trustee) 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.
"Existing Notes" means the 12 1/2% Senior Notes due 2002 of the Company and
PFC (including Existing Notes issuable in connection with the Debt Warrants).
"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 Company'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.
-9-
"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.
"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).
"Guarantor" means any future direct or indirect Significant Subsidiary of
the Company and each Restricted Subsidiary of the Company that hereafter becomes
a Guarantor pursuant to Section 10.1 hereof, pursuant to its execution of a
supplemental indenture to this Indenture relating to its Guarantee; "Guarantors"
means such entities, collectively.
"Holder" or "Noteholder" means a Person in whose name a Note is registered
in the security register.
"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 designated to the Trustee in an
-10-
Officers' Certificate, including a Board Resolution, 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," "Incurable" 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.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
promulgated under the Securities Act.
"Interest Coverage Ratio" means, at any date of determination, the ratio of:
(i) EBITDA 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; and (c) prepaid expenses and workers' compensation, utility, lease
and similar deposits, in the ordinary course of business.
-11-
"Issue Date" means the date the Notes are first issued by the Issuers and
authenticated by the Trustee under this Indenture.
"Issuers" means the Company and PFC.
"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).
"Maturity Date" means February 1, 2007.
"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; (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
-12-
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 the securities that are issued under this Indenture, as
amended or supplemented from time to time pursuant to this Indenture.
"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.
"Offering" means the offering of the Notes as described in the Offering
Memorandum.
"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 Issuers
by first class mail, postage prepaid, to each Holder at his or its address
appearing in the security register on the date of the Offer offering to purchase
up to the aggregate principal amount of Notes 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 Issuers 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 Issuers' obligation to make an Offer to Purchase,
and the Offer shall be mailed by the Issuers or, at the Issuers' request, by the
Trustee in the name and at the expense of the Issuers. 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 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
-13-
covenants requiring the Offer to Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Issuers for each $1,000
principal amount of Notes 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;
(6) the place or places where Notes are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that, unless the Issuers default in making such purchase, any Note
accepted for purchase pursuant to the Offer to Purchase will cease to
accrue interest after the Purchase Date, but that any Note not tendered or
tendered but not purchased by the Issuers pursuant to the Offer to Purchase
will continue to accrue interest at the same rate;
(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 Issuers or the Trustee so requires, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuers 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 Issuers (or their paying agent) receive, 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 Issuers 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 Issuers shall purchase Notes
-14-
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 Memorandum" means the Offering Memorandum dated January 23, 1997,
pursuant to which the Notes were offered.
"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).
"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.
"Opinion of Counsel" means a written opinion from legal counsel, which
counsel is reasonably acceptable to the Trustee.
"Permitted Affiliate Agreements" means the agreements between and among the
Company and each of the ▇▇▇▇▇▇▇▇ Group, Mobil Oil and Chartwell, listed on
Schedule 1 to 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 hereof, provided that, notwithstanding such covenant,
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 the Credit Agreement
(other than pursuant to Section 4.6(a) hereof or pursuant to clause (xiv) of
this definition) in an aggregate
-15-
principal amount not to exceed $75,000,000 at any one time outstanding, less (x)
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) and (y) the amount of Existing Notes
outstanding upon the closing of the Transactions, plus Debt Incurred to redeem
such Existing Notes; (ii) Debt outstanding under the Notes and the Existing
Notes and contribution, indemnification and reimbursement obligations owed by
any Issuer or any Guarantor to any of the other of them in respect of amounts
paid or payable on such Notes and Existing Notes; (iii) Guarantees of the Notes;
(iv) Debt of the Company or any Restricted Subsidiary outstanding at the time of
the initial issuance of the Notes; (v) Debt owed to and held by the Company or a
Wholly-Owned Restricted Subsidiary; (vi) Guarantees Incurred by the Company in
the ordinary course of business; (vii) Guarantees by any Restricted Subsidiary
of Debt of the Company or any Restricted Subsidiary, including Guarantees by any
Restricted Subsidiary of Debt under the Credit Agreement, provided that (a) such
Debt (other than Debt Incurred under clauses (i) and (ii) of this definition) is
Incurred in accordance with Section 4.6 hereof and (b) such Guarantees are
subordinated to the Notes to the same extent as the Debt being guaranteed;
(viii) Debt in respect of performance, surety or appeal bonds provided in the
ordinary course of business; (ix) Debt under Interest Swap Obligations and
Currency Hedge Obligations; (x) 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; (xi) Debt
Incurred to pay for 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; (xii) 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 (xii) plus the aggregate principal amount of Debt under clauses (i),
(xiii) and (xiv) shall not exceed $87,000,000; (xiii) 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 $2,000,000
in the aggregate; (xiv) Debt of the Company or
-16-
any Restricted Subsidiary not otherwise permitted pursuant to this definition,
in an aggregate principal amount not to exceed $10,000,000 at any time
outstanding; and (xv) Refinancing Debt.
"Permitted Holders" means (i) Chartwell and (ii) Mobil Oil.
"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;
(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 the "Limitations on Asset Sales" covenant
set forth in Section 4.9 hereof;
(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
-17-
(l) Investments by the Company or any Restricted Subsidiary not
otherwise permitted under this definition, in an aggregate amount not to
exceed $5,000,000 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 the Credit Agreement or
Debt Incurred under clause (xiv) of the definition of "Permitted Debt," in the
aggregate, of up to $125,000,000 aggregate principal amount, or Liens to secure
a Restricted Subsidiary's Guarantee of such Debt under the Credit Agreement; (c)
Liens on Property or assets of the Company or a Restricted Subsidiary securing
Debt Incurred in compliance with clause (xiii) 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 (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 Code in connection with a "plan" (as defined in ERISA) (other than
any Lien imposed in connection with the Company's 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 or a Restricted Subsidiary, or becomes a Restricted Subsidiary (and not
Incurred in anticipation of such transaction), provided that such Liens are not
extended to the Property and assets of the Company and its Restricted
Subsidiaries other than the Property or assets acquired; (i) Liens securing Debt
of a Restricted Subsidiary to the Company or a Restricted Subsidiary thereof or
-18-
a Guarantee of Debt of the Company or a Restricted Subsidiary; (j) other Liens
incidental to the conduct of the business of the Company or any of its
Restricted Subsidiaries, as the case may be, or the ownership of their assets
that do not materially impair the use or value of the Property subject thereto
in its use in the business of the Company or such Restricted Subsidiary; (k)
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
(l) 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 (l); 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 Secured Debt" means any Debt of the Company or any Restricted
Subsidiary (plus interest, premium, fees and other obligations associated
therewith), and any refinancing, refunding, replacement, renewal or extension
thereof, (a) under the Credit Agreement, (b) constituting Purchase Money Debt,
(c) constituting Capital Lease Obligations or (d) secured by Permitted Liens.
"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
(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.
"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
-19-
any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Common Interests in such Person.
"Private Placement Legend" means the legend initially set forth on the
Notes in the form set forth on Exhibit A.
"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.
"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
-20-
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 hereof,
shall not be deemed to be Redeemable Capital Interests solely by virtue of such
provisions.
"Redemption Date" means, with respect to any Note, the date on which such
Note is to be redeemed by the Issuers pursuant to the terms of the Notes and
this Indenture.
"Redemption Price" means, when used with respect to any Note to be
redeemed, 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, (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,
renewed, replaced 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.
"Registration Rights Agreement" means the Note Registration Rights
Agreement, dated as of January 30, 1997 by and among the Issuers and CIBC Wood
Gundy Securities Corp. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.
"Regulation S" means Regulation S promulgated under the Securities Act
(including any successor regulation thereto), as it may be amended from time to
time.
-21-
"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.
"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) other than the Debt Warrants;
(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;
(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 Date 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 value or book
value of such Subsidiary; and
(g) any advisory fee paid to an Affiliate with respect to a specific
transaction (other than fees payable
-22-
upon consummation of the Transactions on the closing date thereof).
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
promulgated under the Securities Act; provided that the Trustee shall be
entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Note is a Restricted Security.
"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 144A" means Rule 144A promulgated under the Securities Act (including
any successor regulation thereto), as it may be amended from time to time.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the same
functions.
"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.
"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.
"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, 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.
"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
-23-
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.
"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 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 Petro Stopping Centers, L.P.
"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, collectively, the Equity Investment, the Tender
Offer, the ▇▇▇▇▇▇▇▇▇ Investment and the entering into of the New Credit
Agreement (all as defined, and more fully described, in the Offering
Memorandum).
"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
-24-
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.
"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.
"Wholly-Owned" means, with respect to a Subsidiary, any Subsidiary, all of
the outstanding voting securities (other than directors' qualifying shares) of
which are owned, directly or indirectly, by the Company.
-25-
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".............................................. 2.14
"Bankruptcy Law"............................................. 6.1
"Business Day"............................................... 11.8
"Covenant Defeasance"........................................ 9.3
"Custodian".................................................. 6.1
"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".............................................. 11.8
"Offshore Physical Notes".................................... 2.1
"Paying Agent"............................................... 2.3
"Physical Notes"............................................. 2.1
"Private Exchange Notes"..................................... 2.2
"Registrar".................................................. 2.3
"Required Filing Dates"...................................... 4.2
"Reinvestment Date".......................................... 4.9
"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.
"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, the Guarantors or
any other obligor on the Notes.
-26-
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. Dating; Incorporation of Form in Indenture.
------------------------------------------
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A which is incorporated in and made part of
this Indenture. The Notes may have notations, legends or endorsements required
by law, any depository trust company or stock exchange rule or usage. The
Issuers may use "CUSIP" numbers in issuing the Notes. The Issuers shall approve
the form of the Notes. Each Note shall be dated the date of its authentication.
The Notes offered and sold to Qualified Institutional Buyers in reliance on
Rule 144A shall be issued initially in the form of one or more permanent Global
Notes in registered form, substantially in the form set forth in Exhibit A
("Global Notes"), deposited with the Trustee, as custodian for the Depository,
duly executed by the Issuers and authenticated by the Trustee as hereinafter
provided and shall bear the legend set forth on Exhibit B. The aggregate
principal amount of any Global
-27-
Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as hereinafter
provided.
Notes offered and sold in offshore transactions in reliance on Regulation S
shall be issued in the form of certificated Notes in registered form in
substantially the form set forth in Exhibit A (the "Offshore Physical Notes").
Notes offered and sold to Institutional Accredited Investors or in reliance on
any other exemption from registration under the Securities Act (other than as
described in the preceding paragraph) shall be issued, and Notes offered and
sold in reliance on Rule 144A to Qualified Institutional Buyers may, after their
initial issuance, be issued, in the form of certificated Notes in registered
form in substantially the form set forth in Exhibit A (the "U.S. Physical
Notes"). The Offshore Physical Notes and the U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes."
Section 2.2. Execution and Authentication.
----------------------------
The Notes shall be executed on behalf of each of the Issuers by an Officer
of each of the Issuers. Such signatures may be either manual or facsimile. The
seal of each Issuer shall be impressed, affixed, imprinted or reproduced on the
Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office at
the time the Trustee authenticates the Note or at anytime thereafter, the Note
shall be valid nevertheless.
A Note shall not be valid until the Trustee or an authenticating agent
manually signs the certificate of authentication on the Note. Such signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture. The Trustee or an authenticating agent shall authenticate Notes for
original issue in the aggregate principal amount of up to $135,000,000 upon a
Company Request. The aggregate principal amount of Notes outstanding at any
time may not exceed such amount except as provided in Section 2.7 hereof. Upon
receipt of a Company Request and an Officers' Certificate from the Issuers
certifying that the registration statement relating to the exchange offer
specified in the Registration Rights Agreement is effective and that the
conditions precedent to a private exchange thereunder have been met, the Trustee
shall authenticate an additional series of Notes in an aggregate principal
amount not to exceed $135,000,000 for issuance in exchange for all Notes
previously issued pursuant to an exchange offer registered under the Securities
Act or pursuant to a Private Exchange (as defined in the Registration Rights
Agreement). Exchange Notes (as defined in the Registration Rights Agreement) or
Private Exchange Notes (as defined in the Registration Rights Agreement) may
have such distinctive series designations and such changes in the form (but not
the substance)
-28-
thereof as are specified in the Company Request referred to in the preceding
sentence. The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and integral multiples thereof.
The Trustee may appoint an authenticating agent acceptable to the Issuers
to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. Such authenticating agent shall have the same
right as the Trustee in dealing with the Issuers or any Affiliate of the
Issuers.
Section 2.3. Registrar and Paying Agent.
--------------------------
The Issuers shall appoint a registrar, which shall maintain an office or
agency where Notes may be presented for registration of transfer or for exchange
("Registrar"), and a paying agent, which shall maintain an office or agency
located in the Borough of Manhattan, City of New York, State of New York, where
Notes may be presented for payment ("Paying Agent") and shall maintain an office
or agency where notices and demands to or upon the Issuers in respect of the
Notes and this Indenture may be served. The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Issuers may appoint one or
more co-registrars and one or more additional paying agents. Neither the
Issuers nor any Affiliate of the Issuers may act as Paying Agent. The Issuers
may change any Paying Agent, Registrar or co-registrar without notice to any
Noteholder. The Issuers shall enter into an appropriate agency agreement with
any Registrar or Paying Agent not a party (or Affiliate of a party) to this
Indenture. 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 any such Agent. If the Issuers fail to maintain a Registrar or
Paying Agent, or agent for service of notices and demands, or fails to give the
foregoing notice, the Trustee shall act as such and shall be entitled to
appropriate compensation pursuant to Section 7.7. The Issuers initially appoint
the Trustee as Registrar, Paying Agent and agent for service of notices and
demands in connection with the Notes and State Street Bank and Trust Company,
N.A., ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as the Paying Agent's office in New
York, New York.
Section 2.4. Paying Agent To Hold Money in Trust.
-----------------------------------
Each Paying Agent shall hold in trust for the benefit of the Noteholders or
the Trustee all money held by the Paying Agent for the payment of principal,
Redemption Price or Purchase Price of, and accrued interest on, the Notes
(whether such money has been paid to it by the Issuers or any other obligor on
the Notes), and the Issuers and the Paying Agent shall notify the Trustee of any
default by the Issuers (or any other obligor on the Notes) in
-29-
making any such payment. Money held in trust by the Paying Agent need not be
segregated except as required by law and in no event shall the Paying Agent be
liable for any interest on any money received by it hereunder. The Issuers at
any time may require a Paying Agent to pay all money held by it to the Trustee
and the Trustee may, at any time during the continuance of any Event of Default
specified in Section 6.1(1) or (2), upon written request to a Paying Agent,
require such Paying Agent to forthwith pay to the Trustee all sums so held in
trust by such Paying Agent together with a complete accounting of such sums.
Upon doing so, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
Section 2.5. Noteholder Lists.
----------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Noteholders. If the Trustee is not the Registrar, the Issuers shall furnish to
the Trustee on or before each January 15 and July 15 in each year, and at such
other times as the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of
Noteholders, including the aggregate principal amount of Notes held by each such
Noteholder.
Section 2.6. Transfer and Exchange.
---------------------
Subject to Section 2.15, when a Note is presented to the Registrar with a
request to register the transfer thereof, the Registrar shall register the
transfer as requested and, when Notes are presented to the Registrar with a
request to exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall make the exchange as requested,
provided that every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Issuers and the Registrar duly executed by
the Holder thereof or his attorney, duly authorized in writing. To permit
registration of transfers and exchanges, upon surrender of any Note for
registration of transfer at the office or agency maintained pursuant to Section
2.3 hereof, the Issuers shall issue and execute and the Trustee shall
authenticate Notes at the Registrar's request. Any exchange or transfer shall
be without any service charge to the Noteholder, except that the Issuers may
require payment by the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation to a transfer or exchange,
but this provision shall not apply to any exchange pursuant to Section 2.9, 3.6
or 8.5 hereof. The Trustee shall not be required to register transfers of Notes
or to exchange Notes for a period of 15 days before selection of any Notes to be
redeemed or purchased pursuant to Sections 4.9 and 4.18. The Trustee shall not
be required to exchange or register transfers of any Notes called or being
called for redemption or selected or being selected for repurchase in whole or
in part,
-30-
except the unredeemed or unpurchased portion of any Note being redeemed or
repurchased in part.
Any Holder of the Global Note shall, by acceptance of such Global Note,
agree that transfers of the beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Global Note shall be required to be reflected in a book entry. Each Holder of a
Note agrees to indemnify the Issuers and the Trustee against any liability that
may result from the transfer, exchange or assignment of such Holder's Note in
violation of any provision of this Indenture and/or applicable U.S. federal or
state securities law.
Section 2.7. Replacement Notes.
-----------------
If a mutilated Note is surrendered to the Registrar or Trustee or if the
Holder of a Note presents evidence to the satisfaction of the Issuers and the
Trustee that the Note has been lost, destroyed or wrongfully taken and of the
ownership thereof, the Issuers shall issue and the Trustee shall authenticate a
replacement Note if the requirements of Section 8-405 of the New York Uniform
Commercial Code as in effect on the date of this Indenture are met. An indemnity
bond may be required by the Issuers or the Trustee that is sufficient in the
judgment of the Issuers and the Trustee to protect the Issuers, the Trustee or
any Agent from any loss which any of them may suffer if a Note is replaced. The
Issuers and the Trustee each may charge for its expenses (including reasonable
attorneys' fees and expenses) in replacing a Note. Every replacement Note is an
additional obligation of the Issuers.
Section 2.8. Outstanding Notes.
-----------------
Notes outstanding at any time are all Notes authenticated by the Trustee
except for those cancelled by it, those delivered to it for cancellation, and
those described in this Section 2.8 as not outstanding. If a Note is replaced
pursuant to Section 2.7, it ceases to be outstanding until the Issuers and the
Trustee receive proof satisfactory to each of them that the replaced Note is
held by a bona fide purchaser.
If the Trustee or a Paying Agent holds on a Redemption Date, Purchase Date
or Maturity Date money sufficient to pay the principal, Redemption Price or
Purchase Price of, and accrued interest on, Notes payable on that date, then on
and after that date such Notes cease to be outstanding and interest on them
ceases to accrue. Subject to Section 11.6, a Note does not cease to be
outstanding solely because an Issuer or any Affiliate of the Issuers holds the
Note.
-31-
Section 2.9. Temporary Notes.
---------------
Until definitive Notes are ready for delivery, the Issuers may prepare and
the Trustee, upon receipt of a Company Request, shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form, and shall carry all
rights, benefits and privileges, of definitive Notes but may have variations
that the Issuers consider appropriate for temporary Notes. Without unreasonable
delay, the Issuers shall prepare and the Trustee shall authenticate definitive
Notes in exchange for temporary Notes presented to it.
Section 2.10. 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 transfer, exchange or payment. The Trustee shall cancel
and retain or, upon written request of the Issuers, may destroy (subject to the
record-retention requirements of the Exchange Act) or return to the Issuers in
accordance with its normal practice, all Notes surrendered for transfer,
exchange, payment or cancellation and if such Notes are destroyed, deliver a
certificate of destruction to the Issuers unless the Issuers instruct the
Trustee in writing to deliver the Notes to the Issuers. Subject to Section 2.7
hereof, the Issuers may not issue new Notes to replace Notes (i) in respect of
which it has previously paid all principal, Redemption Price or Purchase Price,
and accrued interest thereon, or (ii) delivered to the Trustee for cancellation.
Section 2.11. Defaulted Interest.
------------------
If the Issuers default in a payment of interest on the Notes, such interest
shall forthwith cease to be payable to the registered Holder on the relevant
record date and the Issuers shall pay the defaulted amounts, plus (to the extent
permitted by law) any interest payable on defaulted amounts pursuant to Section
4.1 hereof, to the Persons who are Noteholders on a subsequent special record
date. The Issuers shall fix the special record date and payment date in a
manner satisfactory to the Trustee and provide the Trustee at least 20 days'
notice of the proposed amount to be paid and the payment date. At least 15 days
before the special record date, the Issuers shall mail or cause to be mailed to
each Noteholder at his address as it appears on the Notes register maintained by
the Registrar a notice that states the special record date, the payment date
(which shall be not less than five nor more than ten days after the special
record date), and the amount to be paid. In lieu of the foregoing procedures,
the Issuers may pay such amounts in any other lawful manner satisfactory to the
Trustee.
-32-
Section 2.12. Deposit of Moneys.
-----------------
Prior to 10:00 a.m., New York City time, on each Interest Payment Date and
Maturity Date, the Issuers shall have deposited with the Paying Agent in New
York, New York in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date or Maturity Date, as the
case may be, in a timely manner which permits the Trustee to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as the case may be.
The principal, Redemption Price or Purchase Price of, and accrued interest on,
Global Notes shall be payable by the Paying Agent to the Depository or its
nominee, as the case may be, as the sole registered owner and the sole holder of
the Global Notes represented thereby. The principal, Redemption Price or
Purchase Price of, and accrued interest on, Physical Notes shall be payable at
the office of the Paying Agent in New York, New York.
Section 2.13. CUSIP Number.
------------
The Issuers, in issuing the Notes, may use a "CUSIP" number(s), and if so,
the Trustee shall use the CUSIP number(s) in notices of redemption or exchange
as a convenience to Holders, provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number(s)
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes.
Section 2.14. Book-Entry Provisions for Global Notes.
--------------------------------------
(a) The Global Notes initially shall (i) be registered in the name of the
Depository or the nominee of such Depository, (ii) be delivered to the Trustee
as custodian for such Depository and (iii) bear legends as set forth in Exhibit
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 the Trustee as its custodian, or under the Global
Note, and the Depository may be treated by the Issuers, the Trustee and any
agent of the Issuers or the Trustee as the absolute owner of the Global Note for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuers, the Trustee or any agent of the Issuers or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
(b) Transfers of Global Notes (including the exchange thereof for Exchange
Notes pursuant to the exchange offer contemplated by Section 2.2) shall be
limited to transfer in whole, but not in part, to the Depository, its successors
or
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their respective nominees. Interests of beneficial owners in the Global Notes
may be transferred or exchanged for Physical Notes in accordance with the rules
and procedures of the Depository and the provisions of Section 2.15. In
addition, Physical Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Notes if (i) the Depository
notifies the Issuers that it is unwilling or unable to continue as Depository
for any Global Note and a successor depositary is not appointed by the Company
within 90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a written request from the Depository
to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Issuers
shall execute, and the Trustee shall, upon receipt of a written order from the
Issuers, authenticate and make available for delivery one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of Global Notes as an entirety to
beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to
be surrendered to the Trustee for cancellation, and the Issuers shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in writing in exchange for its beneficial interest
in the Global Notes, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) Any Physical Note constituting a Restricted Security delivered in
exchange for an interest in a Global Note pursuant to paragraph (b), (c) or (d)
shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section
2.15, bear the Private Placement Legend regarding transfer restrictions
applicable to the Physical Notes set forth in Exhibit A.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture, the Notes or the Guarantees.
Section 2.15. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors and Non-U.S.
--------------------------------------------------------------------
Persons. The following provisions shall apply with respect to the registration
-------
of any proposed transfer of a Note constituting a Restricted Security to any
Institutional Accredited Investor which is not a QIB or to any Non-U.S. Person:
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(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after February
1, 2000 or (y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially in
the form of Exhibit C hereto or (2) in the case of a transfer to a Non-U.S.
Person (including a QIB), the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of (x)
the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the Registrar's
procedures,
whereupon the Registrar shall reflect on its books and records the date and (if
the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Issuers shall execute and the Trustee shall authenticate and make
available for delivery one or more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with respect
-----------------
to the registration of any proposed transfer of a Note constituting a Restricted
Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
the form of Note stating, or has otherwise advised the Issuers and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Note stating, or has otherwise advised the
Issuers and the Registrar in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuers as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
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(ii) if the proposed transferee is an Agent Member, and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Global Note, upon receipt by the Registrar
of instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global Note
in an amount equal to the principal amount of the Physical Notes to be
transferred, and the Trustee shall cancel the Physical Notes so
transferred.
(c) Private Placement Legend. Upon the transfer, exchange or replacement
------------------------
of Notes not bearing the Private Placement Legend, the Registrar shall deliver
Notes that do not bear the Private Placement Legend. Upon the transfer,
exchange or replacement of Notes bearing the Private Placement Legend, the
Registrar shall deliver only Notes that bear the Private Placement Legend unless
(i) the circumstances contemplated by paragraph (a)(i)(x) of this Section 2.15
exist, (ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Issuers and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (iii) such Note
has been sold pursuant to an effective registration statement under the
Securities Act and the Registrar has received an Officers' Certificate from the
Issuers to such effect.
(d) General. By its acceptance of any Note bearing the Private Placement
-------
Legend, each Holder of such a Note acknowledges the restrictions on transfer of
such Note set forth in this Indenture and in the Private Placement Legend and
agrees that it will transfer such Note only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.14 or this Section 2.15. 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 notice to the Registrar.
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
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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 appropriate. 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 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,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date;
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(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 interest accrued to the Redemption Date. Upon surrender
to the Paying Agent, such Notes shall be paid at the Redemption Price, plus
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, the 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 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.
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 interest 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 interest 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 accrue interest 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 and unpaid interest on such Notes to
the Redemption Date. If any Note called for redemption shall not be so paid,
interest will be paid, from the Redemption Date until such redemption payment is
made, on the unpaid Redemption Price of the Note and any interest not paid on
such unpaid amount, in each case, at the rate and in the manner provided in the
Notes.
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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 on or after February 1, 2002, upon not less than
30 nor more than 60 days' notice at the following Redemption Prices (expressed
as percentages of the principal amount to be redeemed) set forth below, plus
accrued 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 February 1, of the years
indicated:
Year Redemption Price
---- ----------------
2002 105.250%
2003 103.500%
2004 101.750%
2005 and thereafter 100.000%
(b) In addition to the foregoing, prior to February 1, 2000, the Issuers
may, with the net proceeds of one or more Public Equity Offerings of Qualified
Capital Interests in the Company or a Successor Entity, redeem up to 35% of the
aggregate principal amount of the outstanding Notes at a Redemption Price
(expressed as a percentage of the principal amount to be redeemed) of 110.500%,
plus accrued 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); provided
that at least $87,800,000 of the principal amount of Notes originally issued
remains outstanding immediately after the occurrence of any such redemption and
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 accrued interest (which shall include any applicable
Additional Interest 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
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Purchase Price of, 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 or any Guarantor are subject to Section
13(a) or 15(d) of the Exchange Act, or any successor provision thereto, the
Issuers and any Guarantors 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 and any Guarantors 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 or any Guarantor 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 or any Guarantor would
have been required to file them. The Issuers and any Guarantors 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,
without cost to such Holders, and (B) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Issuers and any
Guarantors 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 thereto if the
Issuers or any Guarantor were subject thereto and (ii) if filing such documents
by the Issuers or any Guarantor 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
three 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
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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 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
Issuer is taking or proposes 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 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 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.
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(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.
Section 4.6. Limitation on Debt.
------------------
(a) The Company 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, (a) 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 greater than 2.0:1 if the Debt is Incurred prior to February 1,
1999 and 2.25:1 if the Debt is Incurred thereafter and (b) 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 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
Section 4.6 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,
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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 paragraph (a) 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.
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 of the Company.
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 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 (a) 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
-43-
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
occurs and ending on the last day of the fiscal quarter immediately
preceding the date of such proposed Restricted Payment, plus (b) 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, less any such proceeds
used to redeem Notes in accordance with paragraph (b) of Section 3.7
hereof, plus (c) 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.
(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 Section 4.8;
(ii) the retirement of any Qualified Capital Interests of the Company
by conversion into, or by or in exchange for, Qualified Capital 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
-44-
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, 1996;
(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 $750,000 in any
fiscal year; and
(vii) payments that would otherwise constitute Restricted Payments,
not to exceed $100,000 in the aggregate.
(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.
(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
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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, and will not permit any Restricted Subsidiary
to, consummate an Asset Sale unless the Company or such Restricted Subsidiary,
as the case may be, (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 or
such Restricted Subsidiary for such Property or assets consists of cash or
Eligible Cash Equivalents; provided that the amount of any liabilities (as shown
on the Company's or such Restricted Subsidiary's most recent balance sheet) of
the Company or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinate to the Notes or any Guarantee
thereof by any Restricted Subsidiary) 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 or such
Restricted Subsidiary are applied, to the extent the Company elects, (A) to
repay and permanently reduce outstanding Permitted Secured Debt or the Existing
Notes (including Existing Notes issuable in connection with the Debt Warrants)
and to permanently reduce the 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 (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
-46-
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 by the Company or any Restricted Subsidiary 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 Permitted Secured Debt or the
Existing Notes (including Existing Notes issuable in connection with the Debt
Warrants) in accordance with Section 4.9(a) shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the
Issuers shall make an Offer to Purchase, from all Holders, Notes in an aggregate
principal amount equal to the Excess Proceeds, at a Purchase Price in cash equal
to 100% of the principal amount thereof, together with accrued interest, if any,
to the Purchase Date. 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 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 Issuers will comply, to the extent applicable, with the
requirements of Rule l4e-1 under the Exchange Act and other securities laws or
regulations in the event that an Offer to Purchase under this Section 4.9 is
required under the circumstances described therein.
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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 $10,000,000, the Company must obtain a Board 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 $10,000,000, 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 Section
4.8(b)(v) hereof, 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 and (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. The aggregate management, consulting and similar fees
paid by the Company (excluding amounts paid pursuant to the last sentence of
this Section 4.10) (x) to Chartwell shall not exceed $750,000 during any fiscal
year and (y) to Mobil Oil shall not exceed $300,000 in any fiscal year; provided
that in each case any such fees may accrue but shall not be paid by the Company
at any time after the occurrence and during the continuance of a Default or
Event of Default until such Default or Event of Default is cured, whereupon such
accrued and unpaid fees may be paid in addition to such other permitted fees.
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 paragraph (a) of Section 4.8
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hereof. 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 may 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, and will not permit any of its Restricted
Subsidiaries, directly or indirectly, to enter into, create, incur, assume or
suffer to exist any Liens of any kind, other than Permitted Liens, on or with
respect to any of its Property or assets now owned or hereafter acquired or any
interest therein or any income or profits therefrom, without securing the Notes
and all other amounts due under this Indenture (for so long as such Lien exists)
equally and ratably with (or prior to) the obligation or liability secured by
such Lien.
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 (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 will
deliver to the Trustee a copy of the Board Resolution evidencing such
designation.
The Company may designate any Subsidiary (other than 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
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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 paragraph (a) of Section 4.6
hereof 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 hereof 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 hereof and (ii) all the Liens on
the Property and assets of such Unrestricted Subsidiary could be incurred
pursuant to Section 4.11 hereof.
Section 4.14. Limitation on Dividends and Other Payments Affecting
Restricted Subsidiaries.
----------------------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, cause or suffer to exist or become
effective or enter into any encumbrance or restriction (other than pursuant to
this Indenture, law or regulation) on the ability of any Restricted Subsidiary
to (i) pay dividends or make any other distributions on its Capital Interests or
pay any Debt or other obligation owed to the Company or any Restricted
Subsidiary thereof, (ii) make loans or advances to the Company or any Restricted
Subsidiary thereof, or (iii) transfer any of its Property or assets to the
Company or any Restricted Subsidiary of the Company, except:
(a) any encumbrance or restriction in existence on the Issue Date of
the Notes, including those required by the Credit Agreement;
(b) any encumbrance or restriction pursuant to an agreement relating
to an acquisition of property, so long as the encumbrances or restrictions
in any such agreement relate solely to the property so acquired (and are
not or were not created in anticipation of or in connection with the
acquisition thereof);
(c) any encumbrance or restriction which exists with respect to a
Person that becomes a Restricted Subsidiary or merges with or into a
Restricted Subsidiary of the Company on or after the date of initial
issuance of the Notes, which are in existence at the time such Person
becomes a Restricted Subsidiary but not created in connection with or in
anticipation of such Person becoming a Restricted Subsidiary, and which is
not applicable to any Person or the property or assets of any Person other
than such Person or the property or assets of such Person becoming a
Restricted Subsidiary;
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(d) any encumbrance or restriction pursuant to an agreement effecting
a permitted renewal, refunding, replacement, refinancing or extension of
Debt issued pursuant to an agreement referred to in the foregoing clauses
(a) through (c), so long as the encumbrances and restrictions contained in
any such refinancing agreement are no less favorable in any material
respect to the Holders than the encumbrances and restrictions contained in
such agreements in the reasonable judgment of the Board of Directors;
(e) customary provisions restricting subletting or assignment of any
lease or license of the Company or any Restricted Subsidiary or provisions
in agreements that restrict the assignment of such agreement or any rights
thereunder; and
(f) any restriction on the sale or other disposition of assets or
Property securing Debt as a result of a Permitted Lien on such assets or
Property.
Nothing contained in this Section 4.14 shall prevent the Company or any
Restricted Subsidiary from (i) creating, incurring, assuming or suffering to
exist any Liens otherwise permitted in Section 4.11 or (ii) restricting the sale
or other disposition of Property or assets of the Company or any of its
Restricted Subsidiaries that secure Debt of the Company or any of its Restricted
Subsidiaries Incurred in accordance with this Indenture.
Section 4.15. Limitation on Sale and Lease-Back Transactions.
----------------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries 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 (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 hereof.
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
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solicitation documents relating to such consent, waiver or agreement.
Section 4.17. Partnership and Corporate Existence.
-----------------------------------
Subject to Article V hereof, the Issuers shall do or cause to be done all
things necessary to preserve and keep in full force and effect their partnership
or corporate existence, and the corporate, partnership or other existence of
each Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Restricted Subsidiaries; provided, however, that the Issuers
shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Restricted Subsidiaries
(other than with respect to PFC), if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Restricted Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
Section 4.18. Change of Control.
-----------------
(a) Upon the occurrence of a Change of Control, the Issuers will make an
Offer to Purchase all of the outstanding Notes at a Purchase Price in cash equal
to 101% of the principal amount tendered, together with accrued interest, if
any, to the Purchase Date. 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 Issuers commence 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 Issuers to effect such Offer to Purchase, so long as the Issuers
have used and continue to use their 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 Issuers will not be required to make an Offer to Purchase upon a
Change of Control if a third party makes such Offer to Purchase
contemporaneously with or upon a Change of Control in the manner, at the times
and otherwise in compliance with the requirements of this Indenture and
purchases all Notes validly tendered and not withdrawn under such Offer to
Purchase.
(c) On the Purchase Date, the Issuers shall, to the extent lawful, (i)
accept for payment Notes or portions thereof or
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beneficial interests under a Global Note properly tendered pursuant to the Offer
to Purchase, (ii) deposit with the Paying Agent (by no later than 1:00 p.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
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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 11.2. The Issuers may also from time to time 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 Corporate Trust Office of the Trustee set forth in
Section 11.2 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.
-54-
ARTICLE V.
SUCCESSOR CORPORATION
---------------------
Section 5.1. Limitation on Merger, Conveyance, Transfer and Lease.
----------------------------------------------------
(a) 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:
(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, Redemption Price or Purchase Price of, and
accrued interest on, all the Notes and the performance of the covenants and
obligations of the Issuers under this Indenture;
(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 paragraph (a) of Section 4.6 hereof; and
-55-
(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;
provided, however, that, if, in the good faith determination of the Board of
Directors of the Company, (I) the purpose of such transaction is (A) to continue
the Company as 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.
(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 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
-56-
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) except as permitted by this Indenture, any Guarantee shall for any
reason cease to be, or it shall be asserted by any Guarantor or the Company
or PFC not to be, in full force and effect and enforceable in accordance
with its terms;
(6) default in the performance, or breach, of any covenant or
agreement of an Issuer or any Guarantor 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), (4) or (5) 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 of the outstanding Notes;
(7) 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
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or shall constitute a failure to pay such Debt when due and payable after
the expiration of any applicable grace period with respect thereto;
(8) 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
(9) the Company or any Significant Subsidiary or any Guarantor
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
(10) 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 or any Guarantor in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or any Guarantor or for all or substantially all of the
property of the Company or any Significant Subsidiary or any
Guarantor, or
(C) orders the liquidation of the Company or any Significant
Subsidiary or any Guarantor,
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.
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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 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(9) or (10) 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 of the
outstanding Notes may declare the principal of the Notes and any accrued
interest on the Notes to be due and payable immediately by a notice in writing
to the Issuers (and to the Trustee if given by Holders); 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 rescind and annul such acceleration if all existing Events of Default, other
than the non-payment of accelerated principal of, and accrued interest on, the
Notes, have been cured or waived as provided in this Indenture. If an Event of
Default specified in Section 6.1(9) or (10) hereof 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.
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
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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.
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
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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 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 the
Guarantors (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 the Guarantors (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
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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
THIRD: to the Issuers or, to the extent the Trustee collects any amount
from any Guarantor, to such Guarantor.
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.
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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 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
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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 or any Guarantor.
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 the Trustee 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' 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
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Section 11.5 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 Guarantor, 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.
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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 and the Guarantors 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 and the Guarantors
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 and the Guarantors, 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 and the Guarantors 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 and the Guarantors
shall not relieve the Issuers or the Guarantors of their obligations hereunder.
Notwithstanding the foregoing, the Issuers and the Guarantors 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 and the Guarantors 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
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interest on, particular Notes. The obligations of the Issuers and the Guarantors
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 Company and each of the Guarantors 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(9) or (10) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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 Company and the Guarantors 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.
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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.
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 or the Guarantors 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
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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, the Guarantors, if any,
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:
(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, to add a Guarantor in accordance with Section
10.1 hereof or to release a Guarantor in accordance with Section 10.4 hereof; 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
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(8) 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 and the
Guarantors, if any, 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, the Guarantors, if any,
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 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
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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.
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, unless it makes a change
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described in any of clauses (1) through (6) of Section 8.2 hereof. In that case,
the modification, amendment, supplement, waiver or other action shall bind each
Holder of a Note who has consented to it and every subsequent Holder of a Note
or portion of a Note that evidences the same debt as the consenting Holder's
Note.
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 and
the Guarantors enforceable against each of them in accordance with its terms
(subject to customary exceptions). Neither the Issuers nor any Guarantor may
sign a modification, amendment or supplement until the Board of Directors of the
Issuers or such Guarantor, as appropriate, approves it.
ARTICLE IX.
DISCHARGE OF INDENTURE; DEFEASANCE
----------------------------------
Section 9.1. Discharge of Indenture.
----------------------
The Issuers and the Guarantors 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
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within 60 days or are to be called for redemption within 60 days (a "Discharge")
under 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, 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' and the Guarantors' 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 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 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 2.7, 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 and the Guarantors, if any,
discharged from their obligations under the Guarantees, if any, 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 of, and accrued interest on, such
Notes when such payments
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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
and the Guarantors, if any, 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 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 and the Guarantors, if any, 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
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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 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;
(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);
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(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 it 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 and the Guarantors shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.4 hereof or the principal, Redemption 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.
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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 and any Guarantor under this
Indenture, the Notes and the Guarantees, if any, 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 or any Guarantors have made any payment of principal,
Redemption Price of, and accrued interest on, any Notes because of the
reinstatement of their Obligations, the Issuers or such Guarantors, as the case
may be, 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
(or, if such moneys had been deposited by any Guarantors, to such Guarantors),
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 or any Guarantors 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 (or, if appropriate, the Guarantors) upon
Company Request, or if such moneys are then held by the Issuers or any
Guarantors 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 and the Guarantors, if any,
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 Agent, before being required to make any such
repayment, may, at the expense of the Issuers and the Guarantors, if any, either
mail to each Noteholder affected, at the address shown in the register of the
Notes maintained by the Registrar
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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 Guarantors, if
any, or the release of any money held in trust by the Issuers or any Guarantors,
as the case may be, Noteholders entitled to the money must look only to the
Issuers and any Guarantors for payment as general creditors unless applicable
abandoned property law designates another person.
ARTICLE X.
GUARANTEE OF NOTES
------------------
Section 10.1. Guarantee.
---------
Each future direct and indirect Significant Subsidiary and each other
Restricted Subsidiary of the Company that executes a Guarantee in connection
with any other Debt of the Company or any Restricted Subsidiary or otherwise
Incurs Debt (including Permitted Debt) other than under the Credit Agreement for
so long as such other Debt is so guaranteed or outstanding, shall execute a
Guarantee substantially in the form set forth in Exhibit E hereto and a related
supplemental indenture. Subject to the provisions of this Article X, each
Guarantor, by execution of a Guarantee substantially in the form set forth in
Exhibit E hereto and a related supplemental indenture, will jointly and
severally unconditionally guarantee to each Holder and to the Trustee, on behalf
of the Holders, (i) the due and punctual payment of the principal, Redemption
Price or Purchase Price of, and accrued interest on, each Note, when and as the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal,
Redemption Price or Purchase Price of, and accrued interest on, the Notes, to
the extent lawful, and the due and punctual performance of all other Obligations
of the Issuers to the Holders or the Trustee all in accordance with the terms of
such Note and this Indenture, and (ii) in the case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, at stated maturity, by acceleration or otherwise.
Under Section 4.11 hereof, if a Restricted Subsidiary secures any Guarantee of
other Debt, it will secure its Guarantee of the Notes equally and ratably with
such other Debt, except that this requirement will not apply to Liens to secure
such Restricted Subsidiary's Guarantee of Debt which is secured by Permitted
Liens. Each Guarantor, by execution of the Guarantee and a related supplemental
indenture agrees that its obligations
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thereunder and hereunder shall be absolute and unconditional, irrespective of,
and shall be unaffected by, any invalidity, irregularity or unenforceability of
any such Note or this Indenture, any failure to enforce the provisions of any
such Note or this Indenture, any waiver, modification or indulgence granted to
the Issuers with respect thereto by the Holder of such Note or the Trustee, or
any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or such Guarantor.
Each Guarantor, by execution of the Guarantee and the related supplemental
indenture, waives diligence, presentment, filing of claims with a court in the
event of merger or bankruptcy of either of the Issuers, any right to require a
proceeding first against either of the Issuers, protest or notice with respect
to any such Note or the Debt evidenced thereby and all demands whatsoever, and
will covenant that the Guarantee will not be discharged as to any such Note
except by payment in full of the principal, Redemption Price, or Purchase Price
of, and accrued interest on such Note, and as provided in Sections 9.1 and 9.2
hereof and as provided in Section 10.4 hereof. Each Guarantor, by execution of
the Guarantee and the related supplemental indenture, will further agree that,
as between such Guarantor, on the one hand, and the Holders and the Trustee, on
the other hand, (i) the maturity of the Obligations guaranteed by the Guarantee
may be accelerated as provided in Article VI hereof for the purposes of the
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations guaranteed thereby, and (ii) in
the event of any declaration of acceleration of such Obligations as provided in
Article VI hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of the
Guarantee. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article VI hereof, the Trustee shall
promptly make a demand for payment on the Notes under the Guarantee provided for
in this Article X and not discharged. Failure to make such demand shall not
affect the validity or enforceability of the Guarantee upon any Guarantor. A
Guarantee shall not be valid or become obligatory for any purpose with respect
to a Note unless the certificate of authentication on such Note shall have been
signed by or on behalf of the Trustee.
Section 10.2. Execution and Delivery of Guarantees.
------------------------------------
A Guarantee shall be executed on behalf of a Guarantor by the manual or
facsimile signature of an Officer of such Guarantor.
If an Officer of a Guarantor whose signature is on the Guarantee no longer
holds that office, such Guarantee shall be valid nevertheless.
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Section 10.3. Limitation of Guarantee.
-----------------------
The obligations of each Guarantor will be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, result in the obligations of such Guarantor under the Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under Federal or
state law. Each Guarantor that makes a payment or distribution under a
Guarantee shall be entitled to a contribution from each other Guarantor in a pro
rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor.
Section 10.4. Release of Guarantor.
--------------------
(a) A Guarantor shall be deemed automatically and unconditionally released
and discharged from all of its obligations under its Guarantee without any
further action on the part of the Trustee or any Holder; if:
(i) the Guarantor has sold all or substantially all of its assets to
any Person that is not an Affiliate of the Company or the Issuers and each
of their Restricted Subsidiaries have sold or otherwise transferred, by way
of merger, consolidation or otherwise, all of the Capital Interests of the
Guarantor owned by them to a Person that is not an Affiliate of the
Company, in each case in a transaction in compliance with Sections 4.9 and
5.1 hereof to the extent applicable, provided that the Net Proceeds of such
sale or other disposition are applied in accordance with Section 4.9
hereof; or
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, an Issuer or another
Guarantor in a transaction in compliance with Section 5.1 hereof;
and in each such case, the Issuers have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions and the release of
such Guarantor have been complied with. The Trustee shall execute and deliver
an appropriate instrument or instruments evidencing such release upon receipt of
a Company Request.
(b) A Guarantor that is a Restricted Subsidiary (other than a Significant
Subsidiary) shall be deemed automatically and unconditionally released and
discharged from all of its obligations under its Guarantee, without any further
action on the part of the Trustee or any Holder, upon the release or discharge
of the Guarantee which resulted in the creation of such
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Restricted Subsidiary's Guarantee of the Notes, except a discharge or release
by, or as a result of, payment under such Guarantee.
ARTICLE XI.
MISCELLANEOUS
-------------
Section 11.1. 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 11.2. 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 or any Guarantor:
Petro Stopping Centers, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
Petro Holdings GP Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., P.C.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
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Such notices or communications shall be effective when received and shall
be sufficiently given if so given within the time prescribed in this Indenture.
The Issuers, any Guarantor 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 11.3. 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 Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S) 312(c).
Section 11.4. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Issuers or any Guarantor 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 11.5 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 11.5 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.
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Section 11.5. 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 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 or a Guarantor 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 or a Guarantor stating
that the information with respect to such factual matters is in the possession
of such Issuer or such Guarantor, 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,
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opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 11.6. 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, any Guarantor 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, a
Guarantor or any other obligor upon the Notes or any Affiliate of any of them.
Section 11.7. 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.
Section 11.8. 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 11.9. 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
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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 11.10. 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 11.11. 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 or any Guarantor 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 any Guarantor
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 Guarantor, 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, the Guarantees, if any, and the Notes
are solely obligations of the Issuers and any Guarantors, 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 Guarantor, 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,
the Guarantees, if any, 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, the Guarantees, if any, 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.
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Section 11.12. Successors.
----------
All agreements of the Issuers and the Guarantors 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 11.13. 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 11.14. 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 11.15. 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.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, and the seal of each corporate Issuer to be hereunto affixed and
attested, all as of the date and year first written above.
PETRO STOPPING CENTERS, L.P.
By: /s/ ▇▇▇▇▇ ▇. Zine
---------------------------------------------
Name: ▇▇▇▇▇ ▇.Zine
Title: Executive Vice President
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Secretary
PETRO FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇.Zine
---------------------------------------------
Name: ▇▇▇▇▇ ▇. Zine
Title: Vice President
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. Hug
Title: Secretary
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
ATTEST:
/s/ Alison Della Bella
-------------------------------
Name: Alison Della Bella
Title: Assistant Secretary