AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 15, 1996
REGISTRATION STATEMENT NO. 333-
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 33-59423
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
AND POST-EFFECTIVE
AMENDMENT NO. 1 TO S-3
REGISTRATION STATEMENT NO. 33-59423
UNDER THE SECURITIES ACT OF 1933
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TOSCO CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 95-1865716
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
72 CUMMINGS POINT ROAD
STAMFORD, CONNECTICUT 06902
(203) 977-1000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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WILKES MCCLAVE III, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
72 CUMMINGS POINT ROAD
STAMFORD, CONNECTICUT 06902
(203) 977-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
MARTIN H. NEIDELL, ESQ.
STROOCK & STROOCK & LAVAN
SEVEN HANOVER SQUARE, NEW YORK, N.Y. 10004-2594
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box. [X]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF CLASS OFFERING AGGREGATE AMOUNT OF
OF SECURITIES AMOUNT TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED UNIT(1) PRICE(2) FEE(3)
- --------------------------------------------------------------------------------
Debt Securities ...... $75,000,000 100% $75,000,000 $25,862
- --------------------------------------------------------------------------------
(Footnotes appear on following page)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
(Footnotes from Cover Page)
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(1) Estimated solely for purposes of computing the registration fee.
(2) Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus included in this Registration Statement is a combined prospectus
and relates to Registration Statement No. 33-59423, as amended, previously
filed by the Registrant. Registration Statement No. 33-59423 was declared
effective on July 7, 1995. This Registration Statement,which is a new
Registration Statement, also constitutes Post-Effective Amendment No. 1 to
Registration Statement No. 33-59423, and such Post-Effective Amendment No. 1
shall hereafter become effective concurrently with the effectiveness of this
Registration Statement and in accordance with Section 8(c) of the Securities
Act of 1933, as amended. $125,000,000 maximum aggregate offering price of
debt securities are being carried forward from Registration Statement No.
33-59423.
(3) A fee of $43,104, with respect to the $125,000,000 maximum aggregate
offering price being carried over from Registration Statement No. 33-59423,
has been paid. The registration fee with respect to the additional
$75,000,000 maximum offering price of securities registered on this
Registration Statement has been calculated in accordance with Rule 457(a)
under the Securities Act of 1933, as amended.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF ANY OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS (SUBJECT TO COMPLETION)
ISSUED APRIL 15, 1996
$200,000,000
TOSCO CORPORATION
DEBT SECURITIES
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Tosco Corporation ("Tosco" or the "Company") may offer and issue from time
to time up to $200,000,000 in aggregate proceeds of its debt securities each of
which will be a direct, unsecured obligation of Tosco (the "Debt Securities").
The Debt Securities may be offered to the public on terms determined by market
conditions at the time of sale.
The Debt Securities may be issued in one or more series with the same or
various maturities at or above par or with an original issue discount. The
specific designation, aggregate principal amount, authorized denominations,
purchase price, maturity, interest rate (or method of calculation) and time of
payment of interest (if any), any terms for redemption or repurchase, any
listing on a securities exchange or other specific terms of the Debt Securities
in respect of which this Prospectus is being delivered (the "Offered
Securities") are set forth in the accompanying supplement to this Prospectus
(the "Prospectus Supplement"), together with the terms of offering of the
Offered Securities.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The Debt Securities may be offered directly, through agents designated from
time to time, through dealers or through underwriters. Such agents or
underwriters may act alone or with other agents or underwriters. See "Plan of
Distribution". Any such agents, dealers or underwriters will be set forth in the
Prospectus Supplement. If an agent of the Company or a dealer or underwriter is
involved in the offering of the Offered Securities, the agent's commission,
dealer's purchase price, underwriter's discount and net proceeds to the Company
will be set forth in, or may be calculated from, the Prospectus Supplement. Any
underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
____________ , 1996
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY
THIS PROSPECTUS AND PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR BY ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF
AN OFFER TO BUY ANY OF THE OFFERED SECURITIES IN ANY JURISDICTION TO ANY PERSON
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. THIS PROSPECTUS AND
THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THOSE TO WHICH THEY RELATE. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER OR UNDER THE
PROSPECTUS SUPPLEMENT SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES SINCE THE RESPECTIVE DATES OF THIS PROSPECTUS AND THE PROSPECTUS
SUPPLEMENT.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed by the Company may be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, as well as the regional offices of the
Commission at 7 World Trade Center (13th Floor), New York, New York 10048, and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such information can be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such materials can also be
inspected at the offices of the New York Stock Exchange, Inc. and the Pacific
Stock Exchange, Inc., on which exchanges the Company's Common Stock is listed.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities offered hereby. This Prospectus does not contain all
of the information set forth in the Registration Statement, certain parts of
which have been omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company and the
securities offered hereby, reference is made to the Registration Statement,
including the exhibits filed as a part thereof and otherwise incorporated
therein. Copies of the Registration Statement and the exhibits may be inspected,
without charge, at the offices of the Commission, or obtained at prescribed
rates from the Public Reference Section of the Commission at the address set
forth above.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
pursuant to the Exchange Act are incorporated by reference in this Prospectus:
1. Annual Report on Form 10-K for the year ended December 31, 1995
filed on March 20, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities hereunder shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Prospectus and the Prospectus
Supplement to the extent that a statement contained herein or in any other
subsequently filed document which also is incorporated or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus or the Prospectus
Supplement.
The Company will provide a copy of any or all of such documents (exclusive
of exhibits unless such exhibits are specifically incorporated by reference
therein), without charge, to each person to whom this Prospectus is delivered,
upon written or oral request to Joseph Watson, Investor Relations, Tosco
Corporation, 72 Cummings Point Road, Stamford, Connecticut 06902 (telephone
(203) 977-1000).
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IN CONNECTION WITH THE OFFERING OF THE SECURITIES DESCRIBED IN THE
ACCOMPANYING PROSPECTUS SUPPLEMENT, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF SUCH SECURITIES AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
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THE COMPANY
Tosco, through divisions and subsidiaries, is a large independent refiner,
wholesaler, and retail marketer of petroleum products, principally on the East
and West Coasts of the United States. Tosco has extensive distribution
facilities and also engages in related commercial activities throughout the
United States and internationally.
During 1995, Tosco focused its efforts on consolidating its 1993 and 1994
acquisitions of retail marketing assets in the Pacific Northwest, California and
Arizona and expanding both the British Petroleum ("BP") brand in nine western
states and the Exxon brand in Arizona, where Tosco has the exclusive right to
market under those brands. Tosco continued to maintain and upgrade its three
refineries, Avon, Bayway and Ferndale, to remain competitive in the domestic
refining markets.
Tosco also has interests in oil shale properties in Colorado and Utah.
Tosco was incorporated under the laws of the State of Nevada in 1955. Its
principal executive offices are located at 72 Cummings Point Road, Stamford,
Connecticut 06902 and its telephone number is (203) 977-1000.
THE CIRCLE K CORPORATION ACQUISITION
On February 16, 1996, Tosco agreed to acquire The Circle K Corporation
("Circle K") and to merge Circle K with a subsidiary of Tosco (the "Merger").
Circle K has approximately 2,500 convenience stores in the United States of
which 2,300 are company-owned and operated and 200 are franchised. Approximately
1,900 of the Circle K stores sell gasoline. Completion of the transaction is
subject to the approval of various regulatory authorities, the shareholders of
Circle K, and the satisfaction of certain conditions. It is expected to close
prior to mid-1996. Payment of the total acquisition price of approximately $710
million, not including transaction and certain other costs, will consist of
approximately 6.5 million shares of Tosco Common Stock and cash. The Common
Stock to be issued is subject to adjustment if the price of Tosco Common Stock
fluctuates outside an agreed range and for shares issued with respect to stock
options held by certain employees of Circle K. Upon completion of the Merger,
Tosco will be the largest operator of company-owned convenience stores in the
United States and Tosco's retail gasoline sales are expected to increase
significantly to approximately 8,000,000 gallons per day. A large portion of the
Circle K system is located in areas where Tosco is licensed to operate under the
BP or Exxon brand. Tosco intends, where appropriate, to rebrand these locations.
RECENT DEVELOPMENTS
Tosco has entered into an amended and restated revolving credit agreement
(the "New Credit Agreement") to replace Tosco's existing revolving credit
agreement. The New Credit Agreement provides Tosco with $600 million of
revolving credit facilities which are available to Tosco for working capital
purposes and for the acquisition of Circle K. The New Credit Agreement converts
the existing credit agreement, which was a secured, working capital revolving
loan agreement which permitted borrowings based on a borrowing base, to an
unsecured facility, without any borrowing base. The New Credit Agreement also
substantially modifies the financial covenants to provide Tosco with more
flexibility.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds to Tosco from the sale of the Debt Securities offered hereby will be
used to pay a portion of the purchase price for the acquisition of Circle K. The
balance of the cash portion of the purchase price, including working capital,
for Circle K will come from Tosco's available cash and from borrowings under the
New Credit Agreement. See "Recent Developments." Any remaining proceeds will be
used for general corporate purposes.
4
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated.
YEAR ENDED DECEMBER 31,
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1995 1994 1993 1992 1991
----- ----- ----- ----- -----
2.49x 2.83x 3.28x 2.71x 3.55x
For the purpose of computing the above ratio of earnings to fixed charges,
earnings consist of consolidated income from operations before income taxes and
fixed charges. Fixed charges consist of interest on outstanding debt, one third
(the proportion deemed representative of the interest factor) of net rentals and
amortization of debt discount and expense.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Securities") and the extent,
if any, to which such general provisions may not apply thereto will be described
in the Prospectus Supplement relating to such Offered Securities.
The Debt Securities are to be issued in one or more series (each such
series a "Series") under an Indenture (the "Indenture") between the Company and
State Street Bank and Trust Company, as Trustee (the "Trustee"). The form of the
Indenture is included as an exhibit to the Registration Statement.
GENERAL
The Indenture does not limit the amount of Debt Securities which can be
issued thereunder and provides that debt securities of any Series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. The Indenture does not limit the amount of other
indebtedness or securities which may be issued by the Company. All Debt
Securities will be unsecured and will not rank below any other unsecured
indebtedness of the Company. The Trustee will authenticate and deliver Debt
Securities executed and delivered to it by the Company as set forth in the
Indenture.
Reference is made to the Prospectus Supplement for the following and other
possible terms of each Series of the Offered Securities in respect of which this
Prospectus is being delivered: (i) the title of the Offered Securities; (ii) any
limit upon the aggregate principal amount of the Offered Securities; (iii) if
other than 100% of the principal amount, the percentage of their principal
amount at which the Offered Securities will be offered; (iv) the date or dates
on which the principal of the Offered Securities will be payable (or method of
determination thereof); (v) the rate or rates (or method of determination
thereof) at which the Offered Securities will bear interest, if any, the date or
dates from which any such interest will accrue and on which such interest will
be payable, and the record dates for the determination of the holders, to whom
interest is payable; (vi) if other than as set forth herein, the place or places
where the principal of and interest, if any, on the Offered Securities will be
payable; (vii) the price or prices at which, the period or periods within which
and the terms and conditions upon which Offered Securities may be redeemed, in
whole or in part, at the option of the Company; (viii) the obligation, if any,
of the Company to redeem, repurchase or repay Offered Securities, whether
pursuant to any sinking fund or analogous provisions or pursuant to other
provisions set forth therein or at the option of a holder thereof; (ix) the
events of default or covenants relating to the Offered Securities, to the extent
different or in addition to those described herein; (x) whether the Offered
Securities will be issued in certificated and/or book-entry form; (xi) whether
the Offered Securities will be in registered or bearer form and the
denominations thereof; and (xi) any other terms or conditions not inconsistent
with the provisions of the Indenture upon which the Offered Securities will be
offered.
Unless otherwise provided in the Prospectus Supplement relating to any
Offered Securities, principal and interest, if any, will be payable, and the
Debt Securities will be transferable and exchangeable, at the office or offices
or agency maintained by the Company for such purposes, provided that payment of
interest on the Debt Securities will be paid at such place of payment by check
mailed to the persons entitled thereto at the addresses of such persons
appearing on the Security Register. Interest on the Debt Securities will be
payable on any interest payment date to the persons in whose name the Debt
Securities are registered at the close of business on the record date with
respect to such interest payment date.
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Unless otherwise set forth in the Prospectus Supplement, Debt Securities
may be issued only in fully registered form in minimum denominations of $1,000
and any integral multiple thereof. Debt Securities may be exchanged for an equal
aggregate principal amount of Debt Securities of the same Series and date of
maturity in such authorized denominations as may be requested upon surrender of
the Debt Securities at an agency of the Company maintained for such purpose and
upon fulfillment of all other requirements of such agent. No service charge will
be made for any transfer or exchange of the Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Debt Securities will bear interest at a fixed rate (a "Fixed Rate
Security") or a floating rate (a "Floating Rate Security"). Debt Securities
bearing no interest or interest at a rate which, at the time of issuance, is
below the prevailing market rate, will be sold at a discount below their stated
principal amount. Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain Debt Securities
issued at par which are treated as having been issued at a discount for United
States federal income tax purposes will be described in the applicable
Prospectus Supplement.
The Indenture requires the annual filing by the Company with the Trustee of
a certificate as to compliance with all conditions and covenants contained in
the Indenture.
The Company will comply with Section 14(e) under the Exchange Act, and any
other tender offer rules under the Exchange Act which may then be applicable, in
connection with any obligation of the Company to purchase Offered Securities at
the option of the holders thereof. Any such obligations applicable to a Series
of Debt Securities will be described in the Prospectus Supplement relating
thereto.
Unless otherwise described in a Prospectus Supplement relating to any
Offered Securities, there are no covenants or provisions contained in the
Indenture which may afford the holders of Offered Securities protection in the
event of a highly leveraged transaction involving the Company. Except as
otherwise described in the Prospectus Supplement, any such covenants or
provisions will not be subject to waiver by the Company's Board of Directors
without the consent of the holders of not less than a majority in principal
amount of Debt Securities of each Series as described under "Modification of the
Indenture" below.
GLOBAL SECURITY
Unless otherwise set forth in the Prospectus Supplement, upon issuance,
each series of Debt Securities will be represented by a single global security
(the "Global Security") which will be deposited with, or on behalf of, The
Depository Trust Company (the "Depositary") and will be registered in the name
of the Depositary or a nominee of the Depositary.
Upon the issuance of the Global Security, the Depositary or its nominee
will credit on its book-entry registration and transfer system the respective
principal amounts of the individual Debt Securities represented by the Global
Security to the accounts of persons that have accounts with such Depositary
("Participants"). Such accounts shall be designated by the underwriters, if any.
Ownership of beneficial interests in the Global Security will be limited to
Participants or persons that may hold interests through Participants. Ownership
of beneficial interests in the Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depositary or its nominee (with respect to interests of Participants) and
the records of Participants (with respect to interests of persons who hold
through Participants). The laws of some states require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Security.
So long as the Depositary, or its nominee, is the registered owner of the
Global Security, the Depositary or the nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities represented by the
Global Security for all purposes under the Indenture. Except as provided below,
owners of beneficial interests in the Global Security will not be entitled to
have any of the individual Debt Securities represented by the Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest (if any) on
individual Debt Securities represented by the Global Security registered in the
name of the Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security.
None of the Company, the Trustee, any Paying
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Agent, or the Securities Registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interest of the Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company has been advised by the Depositary that, upon receipt of any
payment of principal, premium or interest in respect of the Global Security, the
Depositary immediately will credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interest in the principal
amount of the Global Security as shown on the records of the Depositary.
Payments by Participants to owners of beneficial interests in the Global
Security held through such Participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name."
Such payments will be the responsibility of such Participants.
If the Depositary is at any time unwilling, unable or ineligible to
continue as depositary and a successor depositary is not appointed by the
Company within 90 days, the Company will issue individual Debt Securities in
exchange for the Global Security. In addition, the Company may at any time and
in its sole discretion determine not to have any Debt Securities of a series
represented by one or more Global Securities and, in such event, will issue
individual Debt Securities in exchange for the Global Security for such series.
Further, if the Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in the Global Security may, on terms
acceptable to the Company, the Trustee and the Depositary, receive individual
Debt Securities in exchange for such beneficial interests. In any such instance,
an owner of a beneficial interest in the Global Security will be entitled to
physical delivery of individual Debt Securities equal in principal amount to
such beneficial interest and to have such Debt Securities registered in its
name. Individual Debt Securities of such series so issued will be issued in
denominations, unless otherwise specified by the Company, of $1,000 and integral
multiples thereof.
Except as provided above, owners of beneficial interests in the Global
Security will not be entitled to receive physical delivery of Debt Securities in
definitive form and will not be considered the holders thereof for any purposes
under the Indenture. Accordingly, each person owning a beneficial interest in a
Global Security for a series of Debt Securities must rely on the procedures of
the Depositary and, if such person is not a Participant, on the procedures of
the Participant through which such person owns its interest, to exercise any
rights of a holder of such securities under the Indenture. The Depositary may
grant proxies and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a holder is entitled to give or take under the Indenture. The Company
understands that under existing industry practices, in the event that the
Company requests any action of holders or that an owner of a beneficial interest
in the Global Security desires to give or take any action to which a holder is
entitled to give or take under the Indenture, the Depositary would authorize the
Participants holding the relevant beneficial interests to give or take such
action, and such Participants would authorize beneficial owners owning through
such Participants to give or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
The Depositary has advised the Company that the Depositary is a
limited-purpose trust company organized under the laws of the State of New York,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered under the Exchange Act. The Depositary was created to hold the
securities of its participants and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depositary's participants include securities brokers and dealers (including the
underwriters, if any), banks, trust companies, clearing corporations, and
certain other organizations, some of whom (and/or the representatives) own the
Depositary. Access to the Depositary's book-entry system is also available to
others, such as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a participant either directly or
indirectly.
COVENANTS
Any applicable covenants with respect to the Offered Securities will be
described in the Prospectus Supplement.
EVENTS OF DEFAULT
As to any Series of Debt Securities, the Indenture defines the following
events as "Events of Default": (a) failure to pay interest on any Debt Security
of such series after the interest becomes due and payable and continuance of
such
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default for a period of 30 days; (b) failure to pay all or any portion of the
principal of any Debt Security of such Series when such principal becomes due
and payable at maturity without any grace period; (c) default in the
performance, or breach, of any other covenant of the Company for the benefit of
the Debt Securities of such Series that continues for a period of 30 days (or
such other period specified in such other document) after written notice of such
default has been given (i) to the Company by the Trustee or (ii) to the Company
and the Trustee by the holders of at least 25% of the Debt Securities of such
Series then outstanding; (d) the occurrence of a default under any indebtedness
aggregating in excess of $10,000,000 (i) resulting from the failure to pay
principal at maturity or (ii) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity; (e) final
judgments against the Company or any Subsidiary in excess of $10,000,000 which
remain undischarged for 60 days; or (f) certain events of bankruptcy,
insolvency, or reorganization which are voluntary or, if involuntary, continue
for a period of 90 days.
Additional Events of Default may be added for the benefit of holders of
certain Series of Debt Securities which, if added, will be described in the
Prospectus Supplement relating to such Debt Securities. The Indenture provides
that the Trustee shall notify the holders of Debt Securities of each Series of
any continuing default known to the Trustee which has occurred with respect to
that Series within 90 days after the occurrence thereof. The Indenture provides
that notwithstanding the foregoing, except in the case of default in the payment
of the principal of or interest on any of the Debt Securities of such Series the
Trustee may withhold such notice if the Trustee in good faith determines that
the withholding of such notice is in the interests of the holders of Debt
Securities of such Series.
The Indenture provides that if an Event of Default (other than an Event of
Default described in clause (f) above) with respect to any Series of Debt
Securities shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of Debt Securities of
that Series then outstanding may declare the principal amount of, and accrued
and unpaid interest on, all Debt Securities of that Series to be due and payable
immediately. Upon certain conditions such acceleration may be annulled. The
Indenture provides that if an Event of Default described in clause (f) shall
have occurred and be continuing, the principal amount of (and accrued and unpaid
interest on) all Debt Securities of all Series shall ipso facto become due and
payable immediately, without any declaration or other act on the part of the
Trustee or any holder. Any past defaults and the consequences thereof (except a
default in the payment of principal of or interest on Debt Securities of that
Series) may be waived by the holders of a majority in principal amount of the
Debt Securities of that Series then outstanding. The Indenture also permits the
Company not to comply with certain covenants in the Indenture with respect to
Debt Securities of any Series upon waiver by the holders of a majority in
principal amount of the Debt Securities of such Series then outstanding.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default with respect to any Series of Debt
Securities shall occur and be continuing, the Trustee shall not be under any
obligation to exercise any of the trust powers vested in it by the Indenture at
the request or direction of any of the holders of that Series, unless such
holders shall have offered to the Trustee reasonable security or indemnity. The
holders of a majority in aggregate principal amount of the Debt Securities of
each Series affected and then outstanding shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee under the Indenture or exercising any trust power conferred on the
Trustee with respect to the Debt Securities of that Series; provided that the
Trustee may refuse to follow any direction which is in conflict with any law or
the Indenture and subject to certain other limitations.
No holder of any Debt Securities of any Series will have any right by
virtue or by availing of any provision of the Indenture to institute any
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to the Indenture or for any remedy thereunder, unless such holder
shall have previously given the Trustee written notice of an Event of Default
with respect to Debt Securities of that Series and unless also the holders of at
least 25% in aggregate principal amount of the outstanding Debt Securities of
that Series shall have made written request, and offered reasonable indemnity,
to the Trustee to institute such proceeding as trustee and the Trustee shall
have failed to institute such proceeding within 60 days after its receipt of
such request, and the Trustee shall not have received from the holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
that Series a direction inconsistent with such request. However, the right of a
holder of any Debt Security to receive payment of the principal of and any
interest on such Debt Security on or after the due dates expressed in such Debt
Security, or to institute suit for the enforcement of any such payment on or
after such dates, shall not be impaired or affected without the consent of such
holder.
8
<PAGE>
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Indenture provides that the Company may consolidate with, or sell,
convey or lease all or substantially all of its assets to, or merge with or
into, any other corporation, if (i) either the Company is the continuing
corporation, or the successor corporation is a domestic corporation and
expressly assumes the due and punctual payment of the principal of and interest
on all the Debt Securities outstanding under the Indenture according to their
tenor and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed or observed by the
Company and (ii) immediately after such merger or consolidation, or such sale,
conveyance or lease, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing.
SATISFACTION AND DISCHARGE OF INDENTURE
The Indenture with respect to any Series (except for certain specified
surviving obligations including, among other things, the Company's obligation to
pay the principal of and interest on the Debt Securities of such Series) will be
discharged and cancelled upon the satisfaction of certain conditions, including
the payment of all principal of and interest on all the Debt Securities of such
Series or the deposit with the Trustee of cash or appropriate Government
Obligations or a combination thereof sufficient for such payment or redemption
in accordance with the Indenture and the terms of the Debt Securities of such
Series.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities of each Series at the time outstanding
under the Indenture, to execute supplemental indentures adding any provisions
to, or changing in any manner or eliminating any of the provisions of, the
Indenture or any supplemental indenture with respect to the Debt Securities of
such Series or modifying in any manner the rights of the holders of the Debt
Securities of such Series; provided that no such supplemental indenture may (i)
extend the stated maturity of the principal of any Debt Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of any interest thereof, or reduce any amount payable on
redemption thereof (including any amount with respect to original issue
discount), or reduce the amount of original issue discount security payable upon
acceleration or provable in bankruptcy, or impair or affect the right of any
holder of Debt Securities to institute suit for payment thereof, or, if the Debt
Securities provide therefor, any right of repayment at the option of the holders
of the Debt Securities, without the consent of the holder of each Debt Security
so affected, or (ii) reduce the aforesaid percentage of Debt Securities of such
Series, the consent of holders of which is required for any such supplemental
indenture, without the consent of the holders of all Debt Securities of such
Series so affected. Additionally, in certain prescribed instances, including the
establishment of the forms or terms of Debt Securities of any Series, the
Company and the Trustee may execute supplemental indentures without the consent
of the holders of Debt Securities.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides, if such provision is made applicable to the Debt
Securities of any Series, that the Company may elect either (a) to terminate
(and be deemed to have satisfied) all its obligations with respect to such Debt
Securities (except for the obligations to register the transfer or exchange of
such Debt Securities, to replace mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities,
to compensate and indemnify the Trustee and to punctually pay or cause to be
paid the principal of, and interest on, all Debt Securities of such Series when
due) ("defeasance") or (b) to be released from its obligations with respect to
such Debt Securities upon the deposit with the Trustee, in trust for such
purpose, of money and/or Government Obligations which through the payment of
principal and interest in accordance with their terms will provide money, in an
amount sufficient (in the opinion of a nationally recognized firm of independent
public accountants) to pay the principal of and interest, if any, on the
outstanding Debt Securities of such Series, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor. Such a trust
may be established only if, among other things, the Company has delivered to the
Trustee an opinion of counsel (as specified in the Indenture) with regard to
certain matters, including an opinion to the effect that the holders of such
Debt Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and discharge and will be subject to
federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and
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<PAGE>
defeasance had not occurred. The Prospectus Supplement may further describe
these or other provisions, if any, permitting defeasance or covenant
defeasance with respect to the Debt Securities of any Series.
CERTAIN DEFINITIONS
The terms set forth below are defined in the Indenture as follows:
"Government Obligations" means, unless otherwise specified pursuant to the
Indenture, securities which are (i) direct obligations of the United States
government for which its full faith and credit is pledged or (ii) obligations of
a person controlled or supervised by, or acting as an agency or instrumentality
of, the United States government, the payment of which obligations is
unconditionally guaranteed by the United States government, and which, in either
case, are full faith and credit obligations of the United States government, and
which are not callable or redeemable at the option of the issuer thereof prior
to their stated maturity.
"Subsidiary" means any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of the
outstanding capital stock (or other interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, general
partners, managers, managing members, managing partners or trustees thereof or,
if such persons are not elected, to vote on any matter that is submitted to the
vote of all persons holding ownership interests in such entity) is at the time
owned or controlled, directly or indirectly, by (i) the Company, (ii) the
Company and one or more Subsidiaries or (iii) one or more Subsidiaries.
APPLICABLE LAW
The Debt Securities and the Indenture will be governed by, and construed in
accordance with, the laws of the State of New York.
CONCERNING THE TRUSTEE
The Trustee may provide various commercial banking services to the Company
from time to time.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities (i) through agents, (ii) through
underwriters, (iii) through dealers or (iv) directly to purchasers (through a
specific bidding or auction process or otherwise).
Offers to purchase Debt Securities may be solicited by agents designated by
the Company from time to time. Any such agent involved in the offer or sale of
the Offered Securities will be named, and any commissions payable by the Company
to such agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as the term is defined in the Securities Act, of the Debt
Securities so offered and sold. Agents may be entitled under agreements which
may be entered into with the Company to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may be
customers of, engaged in transactions with or perform services for the Company
in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers, if any, will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales of
Offered Securities. The underwriters may be entitled under the relevant
underwriting agreement to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and such
underwriters or their affiliates may be customers of, engage in transactions
with, or perform services for the Company in the ordinary course of business.
If a dealer is utilized in the sale of Offered Securities, the Company will
sell such Debt Securities to the dealer, as principal. The dealer may then
resell such Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale. Dealers may be entitled, under agreements
which may be entered into with the Company, to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act, and
such
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<PAGE>
dealers or their affiliates may be customers of, extend credit to or engage
in transactions with, or perform services for the Company in the ordinary course
of business. The name of any dealer and the terms of the transactions will be
set forth in the Prospectus Supplement relating thereto.
Offers to purchase Debt Securities may be solicited directly by the Company
and sales thereof may be made by the Company directly to institutional investors
or others. The terms of any such sales, including the terms of any bidding or
auction process, if utilized, will be described in the Prospectus Supplement
relating thereto.
The place and time of delivery for the Debt Securities in respect of which
this Prospectus is delivered are set forth in the Prospectus Supplement.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Debt Securities
offered hereby will be passed upon for the Company by Stroock & Stroock & Lavan
of New York, New York.
EXPERTS
The consolidated balance sheets of Tosco as of December 31, 1995 and 1994,
and the consolidated statements of income, common shareholders' equity (deficit)
and cash flows, and the financial statement schedules, for each of the three
years in the period ended December 31, 1995, incorporated by reference in this
Prospectus, have been incorporated herein in reliance on the report of Coopers &
Lybrand L.L.P., independent accountants, given on the authority of that firm as
experts in accounting and auditing.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following sets forth the estimated expenses in connection with the
issuance and distribution of the Registrant's securities being registered
hereby, other than underwriting discounts and commissions, all of which will be
borne by the Registrant:
Securities and Exchange Commission registration fee ...... $ 25,862*
Printing and engraving expenses .......................... 75,000
Legal fees and expenses .................................. 40,000
Accounting fees and expenses ............................. 25,000
Blue Sky fees and expenses ............................... 10,000
Trustee's Fees ........................................... 10,000
Miscellaneous expenses ................................... 4,138
--------
Total .................................................. $190,000
========
- ------------
* A fee of $43,104 was previously paid in connection with the registration of
$125,000,000 maximum aggregate offering price of securities which are being
carried forward to this Registration Statement from Registration Statement
No. 33-59423.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Articles of Incorporation of the Registrant provide that the
Registrant shall, to the fullest extent provided by the Nevada General
Corporation Law (the "Nevada GCL"), indemnify any and all persons whom it shall
have the power to indemnify under the Nevada GCL from and against any and all of
the expenses, liabilities or other matters referred to in or covered by the
Nevada GCL. The indemnification provided for in the Registrant's Restated
Articles of Incorporation shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any By-Law, agreement, vote of
stockholders or disinterested Directors, statute, rule or by common law or
otherwise.
The By-Laws of the Registrant also provide that the Registrant shall
indemnify officers and Directors of the Registrant, for, among other things, any
threatened, pending, or completed action, suit or proceeding if he acted in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interest of the Registrant, and, in the case of a criminal action or
proceeding, he had no reasonable cause to believe that his conduct was unlawful.
The Registrant continues to maintain Directors and officers liability
insurance policies. The Registrant presently carries $14 million of such
coverage under a policy maintained with a wholly-owned subsidiary of the
Registrant engaged in the insurance business in Bermuda. In addition, the
Registrant carries $50,000,000 of Directors and officers liability coverage
under policies maintained with private unaffiliated insurance carriers. The
insurance subsidiary has deposited in trust the insurance premiums received by
it from the Registrant which will be used to pay losses which are covered by the
insurance policy issued by such subsidiary.
The Restated Articles of Incorporation of the Registrant include a
provision which eliminates the liability of Directors and officers to the
Registrant or its stockholders for damages for breaches of their fiduciary duty,
except for liability (i) for acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law; or (ii) for the payment of
dividends in violation of the provisions of the Nevada GCL which provide that
directors who, willfully or with gross negligence, permit the payment of a
dividend or the making of a distribution other than as permitted by the Nevada
GCL are jointly and severally liable for the lesser of the amount of the
dividend or the loss sustained by reason of the dividend or other distribution
to stockholders.
Under Nevada law, absent the foregoing provision, Directors and officers
would be liable for negligence or misconduct in the performance of their duties
to the Registrant. The provision absolves Directors and officers of liability
for negligence, including gross negligence, in the performance of their duties.
They will remain liable for acts or
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<PAGE>
omissions which involve intentional misconduct, fraud, a knowing violation of
law or a violation of the provision referred to above concerning payment of
dividends. The provision has no effect on the availability of equitable remedies
such as injunction or rescission upon breach of such duty. In addition, the
Registrant understands that the Commission takes the position that the provision
will not affect the liability of such persons under the federal securities laws.
The Commission's position appears to be that (1) the Nevada law authorizing this
provision by its terms only permits the elimination or limitation for breach of
fiduciary duty as a director or officer, which is a state law liability and not
one imposed by the federal securities laws, and (2) the federal securities laws
preempt attempts by the states to limit liability for violations of such laws.
However, these issues have not been litigated and are unresolved at the present
time. The Nevada law authorizing this provision does not state whether charter
amendments adopted pursuant thereto will apply prospectively only or whether
they will also apply to acts or omissions which are alleged to have occurred
prior to their adoption and the Nevada courts have not addressed such issue. In
the event that such amendments are determined by the Nevada courts to apply
retroactively, the Registrant intends the provision to have such retroactive
application.
The Registrant has entered into indemnification agreements with its
Directors which provide that the Registrant will indemnify such Directors for,
among other things, their expenses in any threatened, pending, or completed
action, suit, proceeding, inquiry or investigation, except where the Registrant
is prohibited by law from paying such expenses, where payment of such expenses
is made by an insurance policy, and certain cases involving the dishonesty of
the Director, including certain securities law violations, and where the
Director initiated the matter against the Registrant.
Reference is made to the Standard Provisions of the Underwriting Agreement,
incorporated by reference as Exhibit 1.1 hereto, which provides certain
indemnification rights to Directors and officers of the Registrant.
ITEM 16. EXHIBITS.
1.1 -- Form of Standard Provisions of the Underwriting Agreement.
Incorporated by reference to Exhibit 1.1 to the Registrant's
Registration Statement on Form S-3 (File No. 33-59423) filed on May 18,
1995.
2.1 -- Agreement and Plan of Merger, dated as of February 16, 1996, among
the Registrant, Tosco Acquisition Sub, Inc. and The Circle K
Corporation. Incorporated by reference to Exhibit 2 to the Registrant's
Schedule 13D dated February 23, 1996, filed with respect to The Circle K
Corporation.
2.2 -- Stock Sale Agreement, dated as of February 16, 1996, among the
Registrant and the selling stockholders of The Circle K Corporation
named therein. Incorporated by reference to Exhibit 1 to the
Registrant's Schedule 13D dated February 23, 1996, filed with respect to
The Circle K Corporation.
4.1 -- Form of Indenture between Registrant and State Street Bank and Trust
Company, as Trustee, relating to Debt Securities (including Form of Debt
Security).
5.1 -- Opinion of Stroock & Stroock & Lavan as to the legality of the Debt
Securities.
12.1 -- Statement regarding computation of ratio of earnings to fixed charges.
23.1 -- Consent of Stroock & Stroock & Lavan (included in Exhibit 5.1).
23.2 -- Consent of Coopers & Lybrand L.L.P.
24.1 -- Power of attorney (included in Part II of this Registration Statement).
25.1 -- Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of State Street Bank and Trust Company. Such
statement is bound separately from the other exhibits to this
Registration Statement.
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
1993 Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the 1933
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby undertakes (1) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that time meets the requirements of Section 10(a) of the 1933 Act, and
relating to the securities offered at competitive bidding, as contained in the
Registration Statement, together with any supplements thereto, and (2) to file
an amendment to the Registration Statement reflecting the results of bidding,
the terms of the reoffering and related matters to the extent required by the
applicable form, not later than the first use, authorized by the Registrant
after the opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by the
Registrant and no reoffering of such securities by the purchasers is proposed to
be made.
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
(e) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(f) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended
(the "Act"), in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stamford, State of Connecticut, on April 12, 1996.
TOSCO CORPORATION
/s/ THOMAS D. O'MALLEY
By: -----------------------------------
THOMAS D. O'MALLEY
CHAIRMAN OF THE BOARD OF DIRECTORS
AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas D. O'Malley, Jefferson F. Allen and Wilkes
McClave III, and each of them, his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) of and supplements to this Registration
Statement and any Registration Statement relating to any offering made pursuant
to this Registration Statement that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto such attorney-in-fact and agents and each of
them full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, to all intents and
purposes and as fully as they might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ THOMAS D. O'MALLEY
- ------------------------- Chairman of the Board of
THOMAS D. O'MALLEY Directors and Chief
Executive Officer April 12, 1996
/s/ JEFFERSON F. ALLEN
- ------------------------- Principal Financial Officer
JEFFERSON F. ALLEN and Director April 12, 1996
/s/ ROBERT I. SANTO
- ------------------------- Principal Accounting Officer April 12, 1996
ROBERT I. SANTO
/s/ JOSEPH B. CARR
- ------------------------- Director April 12, 1996
JOSEPH B. CARR
/s/ PATRICK M. DEBARROS
- ------------------------- Director April 12, 1996
PATRICK M. DEBARROS
- ------------------------- Director , 1996
HOUSTON I. FLOURNOY
/s/ CLARENCE G. FRAME
- ------------------------- Director April 12, 1996
CLARENCE G. FRAME
/s/ EDMUND A. HAJIM
- ------------------------- Director April 12, 1996
EDMUND A. HAJIM
/s/ JOSEPH P. INGRASSIA
- ------------------------- Director April 12, 1996
JOSEPH P. INGRASSIA
/s/ CHARLES J. LUELLEN
- ------------------------- Director April 12, 1996
CHARLES J. LUELLEN
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<PAGE>
EXHIBIT INDEX
EXHIBIT
- -------
1.1 -- Form of Standard Provisions of the Underwriting Agreement.
Incorporated by reference to Exhibit 1.1 to the Registrant's
Registration Statement on Form S-3 (File No. 33-59423) filed on May 18,
1995.
2.1 -- Agreement and Plan of Merger, dated as of February 16, 1996, among the
Registrant, Tosco Acquisition Sub, Inc. and The Circle K Corporation.
Incorporated by reference to Exhibit 2 to the Registrant's Schedule 13D
dated February 23, 1996, filed with respect to The Circle K Corporation.
2.2 -- Stock Sale Agreement, dated as of February 16, 1996, among the
Registrant and the selling stockholders of The Circle K Corporation
named therein. Incorporated by reference to Exhibit 1 to the
Registrant's Schedule 13D dated February 23, 1996, filed with respect to
The Circle K Corporation.
4.1 -- Form of Indenture between Registrant and State Street Bank and Trust
Company, as Trustee, relating to Debt Securities (including Form of Debt
Security).
5.1 -- Opinion of Stroock & Stroock & Lavan as to the legality of the Debt
Securities.
12.1 -- Statement regarding computation of ratio of earnings to fixed charges.
23.1 -- Consent of Stroock & Stroock & Lavan (included in Exhibit 5.1).
23.2 -- Consent of Coopers & Lybrand L.L.P.
24.1 -- Power of attorney (included in Part II of this Registration Statement).
25.1 -- Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of State Street Bank and Trust Company. Such
statement is bound separately from the other exhibits to this
Registration Statement.
EXHIBIT 4.1
================================================================================
TOSCO CORPORATION
AND
STATE STREET BANK AND TRUST COMPANY,
AS TRUSTEE
--------------------
DEBT SECURITIES
--------------------
INDENTURE
DATED AS OF ________________ , 1996
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms Defined .......................................... 1
Board of Directors ......................................................... 2
Business Day ............................................................... 2
Capital Stock .............................................................. 2
Commission ................................................................. 2
Company .................................................................... 2
Company Notice ............................................................. 2
Corporate Trust Office ..................................................... 3
Debt ....................................................................... 3
defaulted interest ......................................................... 3
defeasance ................................................................. 3
Depositary ................................................................. 3
Depositary Security ........................................................ 3
Discount Security .......................................................... 3
Dollar ..................................................................... 3
Event of Default ........................................................... 3
Global Security ............................................................ 3
Government Obligations ..................................................... 3
Holder ..................................................................... 4
incur ...................................................................... 4
Indenture .................................................................. 4
Lien ....................................................................... 4
Maturity ................................................................... 4
Officers' Certificate ...................................................... 4
Opinion of Counsel ......................................................... 4
original issue date ........................................................ 5
Outstanding ................................................................ 5
Paying Agent ............................................................... 5
Persons .................................................................... 5
Place of Payment ........................................................... 5
principal .................................................................. 5
record date ................................................................ 6
Responsible Officer ........................................................ 6
Security ................................................................... 6
Security Register .......................................................... 6
Series ..................................................................... 6
Stated Maturity ............................................................ 6
Subsidiary ................................................................. 6
Trust Indenture Act ........................................................ 7
Trustee .................................................................... 7
United States of America ................................................... 7
U.S. Person ................................................................ 7
vice president ............................................................. 7
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<TABLE>
<CAPTION>
ARTICLE II
SECURITIES
<S> <C> <C>
SECTION 2.1 Forms Generally ........................................................................ 7
SECTION 2.2 Form of Trustee's Certificate of Authentication ........................................ 7
SECTION 2.3 Amount Unlimited; Issuable in Series ................................................... 8
SECTION 2.4 Authentication and Delivery of Securities .............................................. 10
SECTION 2.5 Execution of Securities ................................................................ 11
SECTION 2.6 Certificate of Authentication .......................................................... 12
SECTION 2.7 Denomination and Date of Securities; Payments of Interest .............................. 12
SECTION 2.8 Registration, Transfer and Exchange .................................................... 13
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities .............................. 16
SECTION 2.10 Cancellation of Securities; Destruction Thereof ........................................ 17
SECTION 2.11 Temporary Securities ................................................................... 17
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest ...................................................... 18
SECTION 3.2 Offices for Payment, etc ............................................................... 18
SECTION 3.3 Paying Agents .......................................................................... 19
SECTION 3.4 Written Statement to Trustee ........................................................... 20
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and Addresses of Securityholders .... 22
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists .................................. 22
SECTION 4.3 Reports by the Company ................................................................. 23
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default .................. 24
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May Prove Debt .......................... 26
SECTION 5.3 Application of Proceeds ................................................................ 27
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings .................................... 28
SECTION 5.5 Limitations on Suits by Securityholders ................................................ 28
SECTION 5.6 Unconditional Right of Securityholders to Institute Certain Suits ...................... 29
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default ................ 29
SECTION 5.8 Control by Securityholders ............................................................. 29
SECTION 5.9 Waiver of Past Defaults ................................................................ 29
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay Costs ........................... 29
SECTION 5.11 Suits for Enforcement .................................................................. 30
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<TABLE>
<CAPTION>
ARTICLE VI
CONCERNING THE TRUSTEE
<S> <C> <C>
SECTION 6.1 Duties of the Trustee .................................................................. 30
SECTION 6.2 Rights of Trustee ...................................................................... 31
SECTION 6.3 Individual Rights of Trustee ........................................................... 31
SECTION 6.4 Trustee's Disclaimer ................................................................... 31
SECTION 6.5 Notice of Defaults ..................................................................... 31
SECTION 6.6 Reports by Trustee to Holders .......................................................... 32
SECTION 6.7 Compensation and Indemnity ............................................................. 32
SECTION 6.8 Replacement of Trustee ................................................................. 32
SECTION 6.9 Successor Trustee by Merger ............................................................ 33
SECTION 6.10 Eligibility; Disqualification .......................................................... 33
SECTION 6.11 Preferential Collection of Claims against Company ...................................... 33
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders ............................................ 34
SECTION 7.2 Proof of Execution of Instruments ...................................................... 34
SECTION 7.3 Holders to be Treated as Owners ........................................................ 34
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding ..................................... 34
SECTION 7.5 Right of Revocation of Action Taken .................................................... 35
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.2 Supplemental Indentures With Consent of Securityholders ................................ 36
SECTION 8.3 Effect of Supplemental Indenture ....................................................... 37
SECTION 8.4 Documents to Be Given to Trustee ....................................................... 37
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures ........................... 37
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc., on Certain Terms ........................................ 38
SECTION 9.2 Successor Corporation Substituted ...................................................... 38
SECTION 9.3 Opinion of Counsel to Trustee .......................................................... 38
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture ................................................ 39
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities .................... 41
SECTION 10.3 Repayment of Moneys Held by Paying Agent ............................................... 41
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying Agent ............................ 41
SECTION 10.5 Reinstatement of Company's Obligations ................................................. 42
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<CAPTION>
ARTICLE XI
MISCELLANEOUS PROVISIONS
<S> <C> <C>
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of Company Exempt
from Individual Liability ............................................................ 42
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders ............ 42
SECTION 11.3 Successors and Assigns of Company Bound by Indenture ................................... 43
SECTION 11.4 Notices and Demands on Company, Trustee and Securityholders ............................ 43
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein ..... 43
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays ........................................ 44
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act ........................ 44
SECTION 11.8 New York Law to Govern ................................................................. 44
SECTION 11.9 Counterparts ........................................................................... 44
SECTION 11.10 Effect of Headings; Gender ............................................................. 44
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article .............................................................. 45
SECTION 12.2 Election to Redeem; Notice of Redemption; Partial Redemptions ......................... 45
SECTION 12.3 Payment of Securities Called for Redemption ........................................... 46
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption ......... 47
SECTION 12.5 Mandatory and Optional Sinking Funds .................................................. 47
SECTION 12.6 Repayment at the Option of the Holders ................................................ 49
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THIS INDENTURE, dated as of , 1996 between TOSCO CORPORATION, a Nevada
corporation (the "Company"), and STATE STREET BANK AND TRUST COMPANY, a banking
association organized under the laws of the Commonwealth of Massachusetts (the
"Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more Series; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
Holders thereof, it is mutually agreed for the equal and proportionate benefit
of the respective Holders from time to time of the Securities or of a Series
thereof as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended, or
the definitions of which in the Securities Act of 1933, as amended, are referred
to in the Trust Indenture Act of 1939, as amended, including terms defined
therein by reference to the Securities Act of 1933, as amended (except as herein
otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in the Trust Indenture Act of
1939, as amended, and in the Securities Act of 1933, as amended, as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole, as supplemented and amended from time to time, and not to any particular
Article, Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as
the singular.
"Board of Directors" means either the Board of Directors of the Company or
any duly authorized committee of that Board.
"Business Day" means, except as may otherwise be provided in the form of
Securities of any particular Series, with respect to any Place of Payment, any
day, other than a Saturday or Sunday, or a day on which banking institutions are
authorized or required by law or regulation to close in that Place of Payment.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, units representing interests, participations, rights in or other
equivalents (however designated) of such Person's capital stock, including, with
respect to partnerships, partnership interests (whether general or limited) and
any other interest or participation that confers upon a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
such partnership, and any rights (other than debt securities convertible into
capital stock), warrants or options exchangeable for or convertible into such
capital stock.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to its under
the Trust Indenture Act, then the body performing such duties on such date.
"Company" means Tosco Corporation, a Nevada corporation, until a successor
corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor corporation.
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"Company Notice" means the confirmation of the Company signed by an
officer, transmitted to the Trustee of the terms of the issuance of any
Securities.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is located
at Two International Place, Boston, Massachusetts 02110, Attention: Corporate
Trust Division.
"Debt" of a Person means, all indebtedness of such Person which is for
money borrowed.
"defaulted interest" has the meaning specified in Section 2.7.
"defeasance" has the meaning specified in Section 10.1(b)(ii).
"Depositary" means, with respect to the Securities of any Series issuable
or issued in the form of one or more Global Securities, the Person designated as
Depositary by the Company pursuant to Section 2.3 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such person,
"Depositary" as used with respect to the Securities of any such Series shall
mean the Depositary with respect to the Global Securities of that Series.
"Depositary Security" means, with respect to any Series of Securities, a
Security executed by the Company and authenticated and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in accordance
with this Indenture and pursuant to a resolution of the Board of Directors as
contemplated by Section 2.3, which (i) shall be registered as to principal and
interest in the name of the Depositary or its nominee and (ii) shall represent,
and shall be denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such Series.
"Discount Security" means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.1.
"Dollar" means the coin or currency of the United States of America which
as of the time of payment is legal tender for the payment of public and private
debts.
"Event of Default" has the meaning specified in Section 5.1.
"Global Security" means a Security evidencing all or a part of a Series of
Registered Securities, issued to the Depositary for such Series in accordance
with Section 2.4, and bearing the legend prescribed in Section 2.4.
"Government Obligations" means, unless otherwise specified pursuant to
Section 2.3, securities which are (i) direct obligations of the United States
government for which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by, or acting as an agency or instrumentality
of, the United States government, the payment of which obligations is
unconditionally guaranteed by the United States government, and which, in either
case, are full faith and credit obligations of the United States government, and
which are not callable or redeemable at the option of the issuer thereof prior
to their stated maturity.
"Holder", "Holder of Securities", "Securityholder" or other similar terms
mean the person in whose name such Security is registered in the Security
Register.
"incur" means to issue, incur, assume, guarantee, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
the payment of, any Debt.
"Indenture" means this instrument as originally executed and delivered or
as it may from time to time be amended or supplemented as herein provided, as so
amended or supplemented or both, and shall include the forms and terms of
particular Series of Securities established as contemplated by Section 2.3.
"Lien" means any mortgage or deed of trust, pledge, assignment, security
interest, lien, charge, or other encumbrance or preferential arrangement
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
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"Maturity" when used with respect to any Security means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed on behalf of the Company
by the chairman of the Board of Directors or the vice chairman or the president
or any vice president and by the treasurer, the controller, any assistant
treasurer, the secretary or any assistant secretary of the Company and delivered
to the Trustee. Each such certificate shall include the statements provided for
in Section 11.5.
"Opinion of Counsel" means a written opinion of legal counsel, who may be
an employee of or counsel to the Company, and who shall be reasonably acceptable
to the Trustee. Each Opinion of Counsel shall include the statements provided
for in Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Outstanding" when used with reference to Securities, subject to the
provisions of Section 7.4, means, as of any particular time, all Securities
authenticated and delivered under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount and in the required currency shall
have been deposited in trust with the Trustee or with any Paying Agent
(other than the Company) or shall have been set aside, segregated and held
in trust by the Company for the Holders of such Securities (if the Company
shall act as its own Paying Agent), provided that if such Securities, or
portions thereof, are to be redeemed prior to the Maturity thereof, notice
of such redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee and the Company is presented that
such Security is held by a person in whose hands such Security is a legal,
valid and binding obligation of the Company); and
(d) Securities as to which defeasance has been effected pursuant to
Section 10.1(b).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Discount Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.1.
"Paying Agent" means any Person (which may include the Company) authorized
by the Company to pay the principal of or interest, if any, on any Security on
behalf of the Company.
"Persons" or "Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any Series,
means the place or places where the principal of and interest, if any, on the
Securities of that Series are payable as specified pursuant to Section 3.2.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any."
"record date" has the meaning specified in Section 2.7.
"Responsible Officer" when used with respect to the Trustee means any
officer within the corporate trust department (or any successor department) of
the Trustee including any vice president, assistant vice president,
3
<PAGE>
assistant secretary, senior trust officer, trust officer or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred at the Corporate
Trust Office because of his or her knowledge of and familiarity with the
particular subject.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" has the meaning specified in Section 2.8.
"Series" or "Series of Securities" means all Securities of a similar tenor
authorized by a particular resolution of the Board of Directors.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date on which the principal
of such Security or such installment of principal or interest is due and payable
in accordance with the terms thereof.
"Subsidiary" means any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of the
outstanding Capital Stock (or other interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, general
partners, managers, managing members, managing partners or trustees thereof or,
if such persons are not elected, to vote on any matter that is submitted to the
vote of all persons holding ownership interests in such entity) is at the time
owned or controlled, directly or indirectly, by (i) the Company, (ii) the
Company and one or more Subsidiaries or (iii) one or more Subsidiaries.
"Trust Indenture Act" or "TIA" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939, as amended, as in force at
the date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof until a successor Trustee shall have become such pursuant to the
provisions hereof, and thereafter, "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than once such
Person, "Trustee" as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
"United States of America" means the United States of America (including
the states and the District of Columbia), its territories, possessions, the
Commonwealth of Puerto Rico and other areas subject to its jurisdiction.
"U.S. Person" means a citizen or resident of the United States of America,
a corporation, partnership or other entity created or organized in or under the
laws of the United States of America or any political subdivision thereof or an
estate or trust the income of which is subject to United States of America
federal income taxation regardless of whether such income is from sources within
or without the United States of America or whether or not such income is
effectively connected with the conduct of a trade or business within the United
States of America.
"vice president" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president.
ARTICLE II
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each Series shall be
substantially in such form (including temporary or definitive global form) as
shall be established by or pursuant to a resolution of the Board of Directors or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture (the provisions of which shall be
appropriate to reflect the terms of the Series of Securities represented
thereby) and may have imprinted or otherwise reproduced thereon such legend or
legends, not inconsistent with the provisions of this Indenture, as may be
required to comply with the law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities, as
evidenced by their execution of the Securities.
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The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
This is one of the Securities of the Series designated herein and referred
to in the within-mentioned Indenture.
,
----------------------------------
as Trustee
By: ,
----------------------------------
Authorized Signatory
or
,
----------------------------------
as Trustee
By: ,
----------------------------------
as Authentication Agent
By: ,
----------------------------------
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable In Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more Series and the Securities of
each Series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant to
one or more resolutions of the Board of Directors and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any Series:
(a) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from all other Securities issued by the
Company);
(b) any limit upon the aggregate principal amount of the Securities of the
Series that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the Series pursuant to Sections
2.8, 2.9, 2.11, 8.5 or 12.3);
(c) if other than 100% of their principal amount, the percentage of their
principal amount at which the Securities of the Series will be offered for sale
to the public;
(d) if other than Dollars, the coin or currency in which the Securities of
that Series are denominated;
(e) the date or dates on which the principal of the Securities of the
Series is payable or the method of determination thereof;
(f) the rate or rates (which may be fixed or variable), or the method or
methods of determination thereof, at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest shall accrue,
the interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;
(g) the place or places where the principal of, and interest, if any, on
Securities of the Series shall be payable (if other than as provided in Section
3.2);
(h) the price or prices at which, the period or periods within which and
the terms and conditions upon which Securities of the Series may be redeemed, in
whole or in part, at the option of the Company;
(i) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the Maturity pursuant to Section 5.1 or provable
in bankruptcy pursuant to Section 5.2;
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(j) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the Series whether pursuant to any sinking fund or analogous
provisions or pursuant to other provisions set forth therein or at the option of
a Holder thereof and the price or prices at which and the period or periods
within which and the terms and conditions upon which Securities of the Series
shall be redeemed, purchased or repaid, in whole or in part;
(k) if other than denominations of $1,000, and any integral multiple
thereof, the denominations in which Securities of the Series shall be issuable;
(l) the form of the Securities, including such legends as required by law
or as the Company deems necessary or appropriate and the form of any temporary
global security which may be issued;
(m) if other than the coin or currency in which the Securities of that
Series are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such Series shall be payable;
(n) if the principal of or interest on the Securities of such Series are to
be payable, at the election of the Company or a Holder thereof, in a coin or
currency other than that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon which, such election may
be made;
(o) if the amount of payments of principal of and interest on the
Securities of the Series may be determined with reference to an index, formula
or method, the manner in which such amount shall be determined;
(p) whether, under what circumstances and in what amounts the Company will
pay additional amounts on the Securities of the Series held by a person who is
not a U.S. Person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay such additional amounts;
(q) the Securities of such Series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of such
Series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(r) if other than the Trustee, any trustees, depositaries, authenticating
or Paying Agents, transfer agents or registrars or any other agents with respect
to the Securities of such Series;
(s) if the Securities of such Series do not bear interest, the applicable
dates for purposes of Section 4.1 hereof;
(t) whether the Securities of such Series are to be issuable in whole or in
part in the form of one or more Depositary Securities, and, in such case, the
Depositary for such Securities;
(u) the application, if any, of Section 10.1(b)(ii) to the Securities of
the Series;
(v) any other events of default or covenants with respect to the Securities
of such Series; and
(w) any other terms or conditions upon which the Securities of the Series
are to be issued (which terms shall not be inconsistent with the provisions of
this Indenture).
All Securities of any one Series shall be substantially identical except as
to denomination and as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto. All Securities of any one Series need not be issued at the same time,
and unless otherwise provided, a Series may be reopened for issuances of
additional Securities of such Series.
SECTION 2.4 Authentication and Delivery of Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Company may
deliver Securities of any Series executed by the Company to the Trustee for
authentication, and the Trustee shall thereupon authenticate and make available
for delivery such Securities to or upon the written order of the Company, signed
by both (a) the chairman of its Board of Directors, or any vice chairman of its
Board of Directors, or its president or any vice president and (b) its treasurer
or any assistant treasurer, secretary or any assistant secretary without any
further action by the Company. In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive and (subject to Section
6.1) shall be fully protected in relying upon:
(a) a copy of any resolution or resolutions of the Board of Directors
relating to such Series, in each case certified by the secretary or an
assistant secretary of the Company;
(b) a supplemental indenture, if any;
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(c) an Officers' Certificate setting forth the form and terms of the
Securities of such Series as required pursuant to Sections 2.1 and 2.3,
respectively, and prepared in accordance with Section 11.5;
(d) an Opinion of Counsel, prepared in accordance with Section 11.5,
which shall state that:
(i) the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental indenture as permitted by Sections 2.1 and 2.3 in
conformity with the provisions of this Indenture and in conformity
with such resolution or supplemental indenture, as the case may be,
(ii) such Securities have been duly authorized, and, when
authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of the
Company enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting the enforcement
of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
Notwithstanding the provisions of Section 2.3 and of the preceding
paragraph, if all Securities of a Series are not to be originally issued at one
time, it shall not be necessary to deliver the resolution of the Board of
Directors and/or Officers' Certificate otherwise required pursuant to Section
2.3 or the Officers' Certificate and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such Series if such documents are delivered at or prior to
the time of authentication upon original issuance of the first Security of such
Series to be issued. After the original issuance of the first Security of such
Series to be issued, any separate request by the Company that the Trustee
authenticate Securities of such Series for original issuance will be deemed to
be a certification by the Company that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee is advised by counsel in good faith
that the issuance of such Securities would expose the Trustee to personal
liability or is unlawful.
If the Company shall establish pursuant to Section 2.3 that the Securities
of a Series are to be issued in the form of one or more Global Securities, then
the Company shall execute and the Trustee shall, in accordance with this
Section, authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such Series issued and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Company by both (a) the chairman of its Board of Directors, or any
vice chairman of its Board of Directors, or its president or any vice president
and (b) its treasurer or any assistant treasurer or its secretary or any
assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of such
officers. The seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company
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by such persons as, at the actual date of the execution of such Security, shall
be the proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited and executed by the Trustee by the manual signature of one
of its authorized signatories shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. The execution of such
certificate by the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The
Securities of each Series shall be issuable as Securities in denominations as
shall be specified as contemplated by Section 2.3. In the absence of any such
specification with respect to the Securities of any Series, Securities shall be
issuable in denominations of $1,000 and any integral multiple thereof. The
Securities of each Series shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Company executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication. The Securities
of each Series shall bear interest, if any, from the date, and such interest
shall be payable on the dates, established as contemplated by Section 2.3.
Unless otherwise provided as contemplated by Section 2.3, interest on any
Security which is payable, and is punctually paid or duly provided for, on any
interest payment date shall be paid to the person in whose name that Security
(or one or more predecessor Securities) is registered at the close of business
on the regular record date for the payment of such interest.
The term "record date" as used with respect to any interest payment date
(except for a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular Series, or,
if no such date is so specified, the close of business on the fifteenth day
preceding such interest payment date, whether or not such record date is a
Business Day.
Any interest on any Security of any Series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (called
"defaulted interest" for purposes of this Section) shall forthwith cease to be
payable to the Holder on the relevant record date by virtue of his having been
such Holder; and such defaulted interest may be paid by the Company, at its
election in each case, as provided in clause (1) or clause (2) below:
(1) The Company may elect to make payment of any defaulted interest to
the persons in whose names any such Securities (or their respective
predecessor Securities) are registered at the close of business on a
special record date for the payment of such defaulted interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each
Security of such Series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to
such defaulted interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such defaulted interest
in respect of Securities of such Series which shall be not more than 15 nor
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such special
record date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such defaulted interest and the special
record date thereof to be mailed, first class postage prepaid, to each
Holder at his address as it appears in the Security Register, not less than
10 days prior to such special record date. Notice of the proposed payment
of such defaulted interest and the special record date therefor having been
mailed as
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aforesaid, such defaulted interest in respect of Securities of such
Series shall be paid to the person in whose names such Securities (or their
respective predecessor Securities) are registered on such special record
date and such defaulted interest shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any defaulted interest on the
Securities of any Series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of that
Series may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security
SECTION 2.8 Registration, Transfer and Exchange. The Company will cause to
be kept at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each Series of Securities a register or registers (herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company will provide for the
registration and the registration of the transfer or exchange of the Securities.
The Trustee is hereby appointed and accepts the appointment as Security
registrar for purposes of registering, and registering transfers of, the
Securities.
Upon surrender for registration of transfer of any Security of any Series
at any such office or agency to be maintained for the purpose as provided in
Section 3.2, the Company shall execute and the Trustee shall authenticate and
make available for delivery in the name of the transferee or transferees a new
Security or Securities of such Series and of a like tenor and containing the
same terms (other than the principal amount thereof, if more than one Security
is executed, authenticated and delivered with respect to any Security so
presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Securities shall equal the principal amount of the
Security presented in respect thereof) and conditions.
At the option of the Holder thereof, Securities of any Series (other than a
Global Security, except as set forth below) may be exchanged for a Security or
Securities of such Series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 3.2 and upon payment, if the Company shall so require, of the
charge hereinafter provided. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive. All Securities surrendered upon any exchange or transfer provided for
in this Indenture shall be promptly cancelled and disposed of by the Trustee and
the Trustee will deliver a certificate of disposition thereof to the Company.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Securities, other than exchanges
pursuant to Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security during a 15-day period prior to the day of mailing of the
relevant notice of redemption or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except, in the case
of any Security to be redeemed in part, the portion thereof not redeemed.
Notwithstanding any other provisions of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a portion of the Securities of a
Series may
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not be transferred except as a whole by the Depositary for such Series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such Series or a nominee of such successor
Depositary.
If at any time the Depositary for any Securities of a Series represented by
one or more Global Securities notifies the Company that it is unwilling or
unable to continue as Depositary for such Securities or if at any time the
Depositary for such Registered Securities shall no longer be eligible under
Section 2.4, the Company shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 2.3 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Company will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such Series, will authenticate and deliver, Securities of such
Series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities in exchange for such Global Security
or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any Series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate for the authentication and delivery of definitive Securities of such
Series, will authenticate and deliver, Securities of such Series in definitive
registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If an Event of Default occurs and is continuing with respect to Securities
of any Series issued in the form of one or more Global Securities, upon written
notice from the Depositary, the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such Series, will authenticate and deliver, Securities
of such Series in definitive registered forms, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities, representing such Securities, in exchange for such
Global Security or Securities.
If specified by the Company pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same Series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge
to the Holder,
(i) to the Person specified by such Depositary a new Security or
Securities of the same Series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form, in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Company or the Trustee. Securities
in definitive registered form issued in exchange for a Global Security pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or agent of the Company or the Trustee. The Trustee or such
agent shall deliver such Securities to or as directed by the Persons in whose
names such Securities are so registered.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated or defaced or
be destroyed, lost or stolen, then, in the absence of notice to the Company or
the Trustee that the Security has been acquired by a bona fide purchaser, the
Company shall execute, and upon the written request of any officer of the
Company, the Trustee shall authenticate and make available for delivery a new
Security of the same Series and of like tenor and principal amount and with the
same terms and conditions, bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated or defaced
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Security or in lieu of and substitution for the Security so destroyed, lost or
stolen. In every case the applicant for a substitute Security shall furnish to
the Company and to the Trustee and to any agent of the Company or the Trustee
such security or indemnity as may be required by them to indemnify and defend
and to save each of them harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof and in the case of mutilation or
defacement shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or
authorize, the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security); provided, however, that unless otherwise
provided pursuant to Section 2.3, the applicant for such payment shall furnish
to the Company and to the Trustee and any agent of the Company or the Trustee
such security or indemnity as any of them may require to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and the Trustee and any agent of the Company or the
Trustee evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substitute Security of any Series issued pursuant to the provisions
of this Section by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such Series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by the law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, shall, if surrendered to the Company or any agent of the Company or the
Trustee, be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof, except as expressly permitted by any of the provisions of this
Indenture. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold and all Securities so delivered shall be promptly cancelled by
the Trustee. The Trustee shall return cancelled Securities held by it or provide
a certificate of destruction to the Company. If the Company shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any Series, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Securities for such
Series (printed, lithographed, typewritten or otherwise reproduced, in each case
in form reasonably acceptable to the Trustee). Temporary Securities of any
Series shall be issuable in any authorized denomination, and substantially in
the form of the definitive Securities of such Series but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company with the reasonable concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed by
the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall
furnish definitive Securities of such Series and thereupon temporary Securities
of such Series may be surrendered in exchange therefor without charge to the
Holder at each office or agency to be maintained by the Company for that purpose
pursuant to Section 3.2, and the Trustee shall authenticate and make available
for delivery in exchange for such temporary Securities of such Series an equal
aggregate principal amount of definitive Securities of the same Series of
authorized denominations. Until so
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exchanged, the temporary Securities of any Series shall be entitled to
the same benefits under this Indenture as definitive Securities of
such Series.
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest. The Company covenants and
agrees for the benefit of each particular Series of Securities that it will duly
and punctually pay or cause to be paid the principal of, and interest on, each
of the Securities of such Series in accordance with the terms of such Securities
and of this Indenture. The interest on Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to or upon the written order of the Holders thereof and at the option of the
Company may be paid by wire transfer or by mailing checks for such interest
payable to or upon the written order of such Holders at their last addresses as
they appear on the Security Register.
Unless otherwise specified as contemplated by Section 2.3, payment of
principal of and any interest on any Security in definitive global form shall be
made to the Person or Persons specified therein.
Except as provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat a Person as the Holder of
such principal amount of Outstanding Securities represented by a definitive
Global Security as shall be specified in a written statement of the Holder of
such definitive Global Security.
SECTION 3.2 Offices for Payment, etc. So long as any of the Securities
remain outstanding, the Company will maintain the following for each Series: an
office or agency (a) where the Securities may be presented for payment, (b)
where the Securities may be presented for registration of transfer and for
exchange as provided in this Indenture, and (c) where notices and demands may be
served upon the Company in respect of the Securities of any Series, or this
Indenture.
The Company will give to the Trustee written notice of the location of any
such office or agency and of any change of location thereof. In case the Company
shall fail to so designate or maintain any such office or agency or shall fail
to give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the Corporate
Trust Office. Unless otherwise specified pursuant to Section 2.3, the Trustee is
hereby appointed, and accepts its appointment as, Paying Agent.
SECTION 3.3 Paying Agents. Whenever the Company shall appoint a Paying
Agent other than the Trustee with respect to the Securities of any Series, it
will cause such Paying Agent to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section:
(a) that it will hold all sums received by it as such Paying Agent for
the payment of the principal of or interest on the Securities of such
Series (whether such sums have been paid to it by the Company or by any
other obligor on the Securities of such Series) in trust for the benefit of
the Holders of the Securities of such Series or of the Trustee, and upon
the occurrence of an Event of Default and upon the written request of the
Trustee, pay over all such sums received by it to the Trustee; and
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such Series) to make any
payment of the principal of or interest on the Securities of such Series
when the same shall be due and payable.
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such Series, deposit in a timely manner with the
Paying Agent a sum sufficient to pay such principal or interest so becoming due,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such Series, set aside, segregate and hold
in trust for the benefit of the holders of the Securities of such Series a sum
sufficient to pay such principal or interest so becoming due. The Company will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, the Company may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all Series of
Securities
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hereunder, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for any such Series by the Company or any Paying Agent
hereunder, as required by this Section, such sums to be held by the Trustee upon
the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
SECTION 3.4 Written Statement to Trustee. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company ending
after the date hereof, a brief certificate (which need not comply with Section
11.5) from the principal executive, financial or accounting officer of the
Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under this Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under this Indenture), and if the Company shall not be in
compliance, specifying all such defaults or non-compliance and the nature and
status thereof.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities of such Series:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Securities, as hereinabove specified, as of
such record date and on dates to be determined pursuant to Section 2.3 for
noninterest bearing Securities in each year, and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request,
such list to be as of a date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security registrar
for such Series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders
of each Series of Securities contained in the most recent list furnished to
it as provided in Section 4.1 or maintained by the Trustee in its capacity
as Security registrar for such Series, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of
a new list so furnished.
(b) In case three or more Holders of Securities of any Series
(hereinafter referred to as "applicants") apply in writing to the Trustee
and furnish to the Trustee reasonable proof that each such applicant has
owned a Security for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular Series (in
which case the applicants must all hold Securities of such Series) or with
Holders of all Securities with respect to their rights under this Indenture
or under such Securities and such application is accompanied by a copy of
the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such Series or of all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, as to the approximate cost of mailing
to such Securityholders the form of proxy or other communication, if
any, specified in such application.
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If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such Series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section, a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and
of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission together with a copy of the
material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such Series or of all Securities,
as the case may be, or could be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain
any of such objections or if, after the entry of such order sustaining one
or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been
met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of the Company or the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with the
provisions of subsection (b) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under such subsection (b).
SECTION 4.3 Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions and any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, or if the Company is not required to file
information, documents, or reports pursuant to either of such Sections,
then to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents, and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance
by the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Securities in the manner and
to the extent required by Sections 6.6 and 11.4, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents, and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from time
to time by the Commission.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default" with respect to Securities of any Series wherever
used herein, means any one of the following events which shall have occurred and
be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or
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involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) unless it is either inapplicable to a
particular Series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or resolution of the Board of Directors establishing
such Series of Securities or in the form of Security for such Series:
(a) default in the payment of any installment of interest upon any of
the Securities of such Series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any
of the Securities of such Series as and when the same shall become due and
payable, either at Maturity, upon any redemption, by declaration or
otherwise; or
(c) default in the performance, or breach of any covenant or warranty
of the Company contained in the Securities of such Series or in this
Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the benefit
of a Series of Securities other than that Series), and continuance of such
default or breach for a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that Series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(d) the occurrence of an event of default, as defined, under one or
more mortgages, indentures or other instruments under which there is issued
or by which there is issued or by which there is secured or evidenced
Indebtedness of the Company or any of its Subsidiaries exceeding
$10,000,000 in the aggregate, which results in such Indebtedness becoming
or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration is not rescinded
within 30 days after such acceleration; or
(e) final judgments involving aggregate uninsured liability in excess
of $10,000,000 shall be rendered against the Company or any Subsidiary by a
court of competent jurisdiction and shall remain undischarged for a period
(during which execution shall not be effectively stayed) of 60 days after
such judgment becomes final and nonappealable; or
(f) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of all or any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(g) the commencement by the Company of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of all or any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(h) any other Event of Default provided with respect to Securities of
such Series.
If an Event of Default (other than an Event of Default described in Section
5.1(f) or 5.1(g)), occurs and is continuing with respect to the Securities of
any Series, then and in each and every such case, unless the principal of all
Securities of such Series shall have already become due and payable, either the
Trustee for such Series or the Holders of not less than 25% in aggregate
principal amount of the Securities of such Series then Outstanding hereunder, by
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notice in writing to the Company (and to the Trustee if given by such Holders),
may declare the entire principal (or, if the Securities of such affected Series
are Discount Securities, such portion of the principal amount as may be
specified in the terms of such Series) of, plus accrued and unpaid interest on,
all the Securities of such Series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable. If an Event of Default described in Section 5.1(f) or 5.1(g) occurs and
is continuing, then and in each and every such case, unless the principal of all
Securities of any Series shall have already become due and payable, the entire
principal (or, if the Securities of any affected Series are Discount Securities,
such portion of the principal amount as may be specified in the terms of such
Series) of, plus accrued and unpaid interest on, all the Securities of all
Series shall become and shall be immediately due and payable, without any
declaration or act on the part of the Trustee or any Holder. These provisions,
however, are subject to the condition that if at any time after the principal
(or, if the Securities of such affected Series are Discount Securities, such
portion of the principal amount as may be specified in the terms of such Series)
of the Securities of such Series shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest, if any, upon all the Securities of such Series and the principal of
any and all Securities of such Series which shall have become due otherwise than
by such acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, upon overdue
installments of interest, at the same rate as the rate of interest or yield to
maturity (in the case of Discount Securities) specified in the Securities of
such Series) to the date of such payment or deposit in Dollars such amount as
shall be sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel and all other expenses and liabilities incurred, and all
advances with interest made, by the Trustee, its agents, attorneys and counsel
and if any and all defaults under this Indenture, other than the nonpayment of
the principal of Securities of such Series which shall have become due by such
acceleration, shall have been remedied, then and in every such case the Holders
of a majority in aggregate principal amount of the Securities of such Series
then Outstanding, by written notice to the Company and to the Trustee for the
Securities of such Series, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Discount Securities shall have been accelerated and declared due and payable
pursuant to the provisions hereof, then, from and after such declaration, unless
such declaration has been rescinded and annulled, the principal amount of such
Discount Securities shall be deemed, for all purposes hereunder, to be such
portion of the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment in
full of the Discount Securities.
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May Prove Debt.
The Company covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any Series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon Maturity or
upon any redemption or by declaration or otherwise, then upon demand of the
Trustee for the Securities of such Series, the Company will pay to the Trustee
for the benefit of the Holders of the Securities of such Series the whole amount
that then shall have become due and payable on all Securities of such Series for
principal of or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or yield to maturity (in the
case of Discount Securities) specified in the Securities of such Series); and in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including reasonable compensation to, and all
expenses and liabilities incurred and all advances with interest made by, the
Trustee and each predecessor Trustee except as a result of its negligence or bad
faith.
Until such demand is made by the Trustee, the Company may pay the principal
of and interest on the Securities of any Series to the persons entitled thereto,
whether or not the principal of and interest on the Securities of such Series
are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such Series, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action
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or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon such Securities and collect in the manner provided
by law out of the property of the Company or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
other obligor under the Securities of any Series, or to the property of the
Company or such other obligor, the Trustee, irrespective or whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any Series are Discount
Securities, such portion of the principal amount as may be specified in the
terms of such Series) owing and unpaid in respect of the Securities of any
Series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for reasonable compensation to, and all expenses and liabilities incurred
and all advances with interest made by, the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Company or other obligor upon all
Securities of any Series, or to the property of the Company or such
obligor, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to make
payments to the Trustee for the Securities of such Series, and, in the
event that such Trustee shall consent to the making of payments directly to
the Securityholders, to pay to such Trustee such amounts as shall be
sufficient to cover reasonable compensation to, and all expenses and
liabilities incurred and all advances with interest made by, such Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel
and all other amounts due to such Trustee or any predecessor Trustee
pursuant to Section 6.7, except as a result of Trustee's negligence or bad
faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any Series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee for the Securities of such
Series without the possession of any of the Securities of such Series or the
production thereof at any trial or other proceedings relative thereto, any such
action or proceedings instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities in respect of which such action
was taken.
In any proceedings brought by the Trustee for the Securities of such Series
(and also any proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party), the Trustee shall be held to
represent all the Holders of the Securities in respect to which such action was
taken, and it shall not be necessary to make any Holders of such Securities
parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the Trustee
for the Securities of such Series pursuant to this Article in respect of the
Securities of any Series shall be applied in the following order at the date or
dates fixed by such Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the several Securities in
respect of which moneys have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of such Series in reduced principal
amounts in exchange for the presented Securities of like Series if only
partially paid, or upon surrender thereof if fully paid:
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FIRST: To the payment of costs and expenses applicable to such Series in
respect of which moneys have been collected, including reasonable compensation
to, and all expenses and liabilities incurred and all advances with interest
made by, the Trustee and each predecessor Trustee and their respective agents
and attorneys and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.7, except as a result of Trustee's negligence or
bad faith;
SECOND: To the payment of the amounts then due and unpaid for interest on
the Securities of such Series for which principal is not yet due and payable in
respect of which moneys have been collected, such payments to be made ratably to
the persons entitled thereto, without discrimination or preference, according to
the amounts then due and payable on such Securities for interest;
THIRD: To the payment of the amounts then due and unpaid for principal of
and interest on the Securities of such Series for which principal is due and
payable in respect of which moneys have been collected, such payments to be made
ratably to the persons entitled thereto, without discrimination or preference,
according to the amounts then due and payable on such Securities of principal
and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee for the Securities of any Series or any Holder shall have proceeded
to enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to the determination in any such proceeding, the Company, the Trustee and the
Holders shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.5 Limitations on Suits by Securityholders. No Holder of any
Security of any Series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of any Event of
Default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of not less than 25% in aggregate principal amount of the
Securities of such Series then Outstanding shall have made written request upon
the Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity, as it
may require, against the costs, expenses and liabilities to be incurred therein
or thereby and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee during such 60 day period by Holders of a majority in
principal amount of the Securities of such Series then Outstanding; it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Security with every other taker and Holder of a Security and the
Trustee, that no one or more Holders of Securities of any Series shall have any
right in any manner whatever, by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other such Holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable Series.
SECTION 5.6 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any provision in this Indenture and any provision of any
Security, the right of any Holder of any Security to receive payment of the
principal of and (subject to Section 2.7) interest on such Security at the
respective rates, in the respective amount on or after the respective due dates
expressed in such Security, and to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 2.9 and Section 5.5, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 5.5, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or the Securityholders.
SECTION 5.8 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected (with each
Series treated as a separate class) at the time Outstanding shall have the right
to 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 with respect to the Securities of such Series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture; and provided further that the Trustee,
being advised by counsel, shall have the right to decline to follow any such
direction if the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the actions or forbearance specified in or
pursuant to such direction would be unduly prejudicial to the interest of
Holders of the Securities of all Series so affected not joining in the giving of
said direction.
SECTION 5.9 Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Securities of any Series at the
time Outstanding may on behalf of the Holders of all the Securities of such
Series waive any past default hereunder or its consequences, except a default in
the payment of the principal of or interest on any of the Securities of such
Series.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred 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 thereon.
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security, by his
acceptance thereof, shall be deemed to have agreed, that any court may in its
discretion require, 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, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any Securities holding in the aggregate more than 10%
instituted by an Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security or any date fixed for redemption.
SECTION 5.11 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of the Trustee.
(a) If an Event of Default has occurred and is continuing with respect to
the Securities of any Series, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect to
the Securities of any Series:
(i) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; and
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(ii) 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 on their face to the requirements of this
Indenture. However, in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform on their face to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
failure to act or its own willful misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.8.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 6.2 Rights of Trustee. Subject to Section 6.1 and the provisions of
the Trust Indenture Act:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel.
(c) Subject to the provisions of Section 6.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
(d) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 6.3 Individual Rights of Trustee. The Trustee in its individual or
any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or its affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, registrar or co-registrar may do
the same with like rights. However, the Trustee must comply with Sections 6.10
and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, it shall
not be responsible for any statement in the registration statement for the
Securities under the Securities Act of 1933 or in the Indenture or the
Securities (other than its certificate of authentication).
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SECTION 6.5 Notice of Defaults. If a default occurs and is continuing with
respect to any Securities of any Series and if it is known to the Trustee
through oral or written notice to a corporate trust officer, the Trustee shall
give to each Securityholder of such Series notice of the default within 90 days
after such default occurs. Except in the case of a default described in Section
5.1(a) or (b), the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice
is in the interest of Securityholders of such Series.
SECTION 6.6 Reports by Trustee to Holders. Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder of any Series and each other person specified
in TIA Section 313(c) a brief report dated as of such May 15 that complies with
TIA Section 313(a) to the extent required thereby. The Trustee also shall comply
with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders of any
Series shall be filed with the Commission and each securities exchange on which
the Securities of any Series are listed. The Company agrees promptly to notify
the Trustee whenever the Securities of any Series become listed on any
securities exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time in Dollars such compensation as
shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances with interest thereon incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances with interest thereon and disbursements
of its agents and counsel), except to the extent any such expense, disbursement
or advance may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection with the
acceptance or administration of this trust or the performance of its duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder (including the reasonable compensation and the
expenses, advances with interest thereon and disbursements of its agents and
counsel), except to the extent that any such loss, liability or expense may be
attributable to its negligence or bad faith.
As security for the performance of the obligations of the Company in this
Section 6.7, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in trust to pay
the principal of or interest, if any, on particular Securities.
"Trustee" for purposes of this Section 6.7 includes any predecessor
Trustee, provided that the negligence or bad faith of any Trustee shall not be
attributable to any other Trustee.
The Company's payment obligations pursuant to this Section 6.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a default specified in Sections 5.1(f) and 5.1(g), such
expenses are intended to constitute expenses of administration under bankruptcy
law.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any time with
respect to Securities of one or more Series by so notifying the Company;
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 6.8. The Holders
of a majority in aggregate principal amount of the Outstanding Securities of any
Series may remove the Trustee with respect to such Series at the time
outstanding by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or 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, with respect to the Securities of one or more Series,
the Company shall promptly appoint, by resolution of its Board of Directors, a
successor Trustee with respect to the Securities of such Series.
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A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon 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 with
respect to the Securities of such Series. The successor Trustee shall mail a
notice of its succession to Securityholders so affected. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 6.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of TIA Section 310(a)(1) and Section 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b).
SECTION 6.11 Preferential Collection of Claims against Company. The Trustee
shall comply with TIA Section 311(a), excluding any creditor relationship listed
in TIA Section 311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all Series may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Securityholders in person or by
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Article.
(b) The ownership of such Securities shall be proved by the Security
Register.
SECTION 7.2 Proof of Execution of Instruments. Subject to Sections 6.1 and
6.2, the execution of any instrument by a Securityholder or his agent or proxy
may be proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
SECTION 7.3 Holders to be Treated as Owners. The Company, the Trustee and
any agent of the Company or the Trustee may deem and treat the person in whose
name any Security shall be registered upon the Security Register for such Series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notification of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and (subject to Section 2.7) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any agent of the Company
or the Trustee shall be affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all Series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Company or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly
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controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities which the Trustee knows are so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor on
the Securities.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all Series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Securities shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all Series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders. The
Company, when authorized by a resolution of its Board of Directors, and the
Trustee for the Securities of any and all Series may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as in force at the date of
the execution thereof), in form satisfactory to such Trustee, for one or more of
the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more Series any property or assets;
(b) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article IX;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
Securities of any or all Series and, if such additional covenants are to be for
the benefit of less than all the Series of Securities stating that such
covenants are being added solely for the benefit of such Series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to matters or questions
arising under this Indenture or under any supplemental indenture as the Board of
Directors may deem necessary or desirable and which shall not materially and
adversely affect the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any Series as permitted
by Sections 2.1 and 2.3;
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more Series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than the one Trustee, pursuant to the requirements of Section 6.8; or
(g) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Outstanding Security of any Series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision.
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The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 8.2
SECTION 8.2 Supplemental Indentures With Consent of Securityholders. With
the consent (evidenced as provided in Article VII) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental indenture (voting as
one class), the Company, when authorized by a resolution of its Board of
Directors, and the Trustee for such Series of Securities may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as in force at
the date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such Series; provided, however, that no such
supplemental indenture shall (a) extend the Stated Maturity of any Security, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable
on redemption thereof, or make the principal thereof (including any amount in
respect of original issue discount) or interest thereon payable in any coin or
currency other than that provided in the Securities or in accordance with the
terms thereof, or reduce the amount of the principal of the Discount Security
that would be due and payable upon an acceleration of the Maturity thereof
pursuant to Section 5.1 or the amount thereof provable in bankruptcy pursuant to
Section 5.2, or impair or affect the right of any Securityholder to institute
suit for payment thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholders without the consent of the Holder
of each Security so affected, or (b) reduce the aforesaid percentage of
Securities of any Series, the consent of the Holders of which is required for
any such supplemental indenture, without the consent of the Holders of each
Security so affected.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular Series of Securities, or which modifies the
rights of Holders of Securities of such Series, with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other Series.
Upon the request of the Company, accompanied by a copy of a resolution of
the Board of Directors certified by the secretary or an assistant secretary of
the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of evidence of
the consent of Securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee for such Series of Securities shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case such Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice thereof to the Holders of then Outstanding Securities of each
Series affected thereby, by mailing a notice thereof by first-class mail to such
Holders at their addresses as they shall appear on the Security Register, and in
each case such notice shall set forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Every supplemental indenture
executed pursuant to this Article VIII shall conform to the requirements of the
Trust Indenture Act. Upon the execution of any supplemental indenture pursuant
to the provisions hereof, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of Securities of each Series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all
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the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Section 6.1 and 6.2, shall receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article VIII complies with the applicable provisions
of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any Series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article VIII may bear,
upon the direction of the Company, a notation in form satisfactory to the
Trustee for the Securities of such Series as to any matter provided for by such
supplemental indenture. If the Company or the Trustee shall so determine, new
Securities of any Series so modified as to conform, in the opinion of the
Trustee and the Company, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of such Series then
Outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc., on Certain Terms. The Company
may sell, convey or lease all or substantially all of its assets to any Person,
or consolidate or merge with or into, any other corporation, provided that in
any such case, (i) either the Company shall be the continuing corporation, or
the successor corporation or person which acquires by sale or conveyance all or
substantially all of the assets of the Company, shall be a corporation or other
entity organized and validly existing under the laws of the United States of
America or any state thereof or the District of Columbia and shall expressly
assume the due and punctual payment of the principal of and interest on all of
the Securities according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company by supplemental indenture satisfactory to
the Trustee, executed and delivered to the Trustee by such corporation or
entity, and (ii) immediately after such merger or consolidation, or such sale,
conveyance or lease, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Company prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall make available for delivery any Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities, which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued, shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than conveyance by way
of lease) the Company (or any successor corporation which shall theretofore have
become such in the manner described in this Article) shall be discharged from
all obligations and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Section 6.1 and 6.2, may receive an Opinion of Counsel, prepared
in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
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ARTICLE X
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (a) If at any time
(i) the Company shall have paid or caused to be paid the principal of and
interest on all the Securities of any Series Outstanding hereunder (other than
Securities of such Series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9) as and when the same
shall have become due and payable, or (ii) the Company shall have delivered to
the Trustee for cancellation all Securities of any Series theretofore
authenticated (other than any Securities of such Series which have been
destroyed, lost or stolen and which shall have been replaced or paid provided in
Section 2.9) or (iii) in the case of the Series of Securities where the exact
amount (including the currency of payment) of principal of and interest due on
such Securities can be determined at the time of making the deposit referred to
in clause (B) below of this Section 10.1(a), (A) all the Securities of such
Series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (B) the
Company shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount (other than moneys repaid by the
Trustee or any Paying Agent to the Company in accordance with Section 10.4) or
Government Obligations maturing as to principal and interest in such amounts and
at such times as will ensure the availability of cash sufficient in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (x) the principal
of and interest on all Securities of such Series on each date that such
principal or interest is due and payable and (y) any mandatory sinking fund
payments on the dates on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such Series, and if, in
any such case, the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to Securities of such Series, then
this Indenture shall cease to be of further effect with respect to Securities of
such Series (except as to (1) rights of registration of transfer and exchange,
and the Company's right of optional redemption (provided the Company provides
sufficient funds to effect such optional redemption), (2) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of Holders
to receive payments of principal therefor (but not upon acceleration) and
remaining rights of the Holders to receive mandatory sinking fund payments, if
any, (4) the rights, obligations and immunities of the Trustee hereunder, (5)
the rights of the Securityholders of such Series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them), and, subject to Section 10.5, the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such Series;
provided, that the rights of Holders of the Securities to receive amounts in
respect of principal of and interest on the Securities held by them shall not be
delayed longer than required by then applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed. The Company agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably
rendered by the Trustee in connection with this Indenture and the Securities of
such Series.
(b) (i) In addition to the provisions of Section 10.1, the Company may, at
its option by or pursuant to, or otherwise in a manner or by such Persons as may
be authorized pursuant to, one or more resolutions duly adopted by the Board of
Directors, at any time with respect to the Securities of any Series, elect to
have defeasance under subsection (ii) of this Section 10.1(b) be applied to the
Outstanding Securities of such Series provided that provision therefor is made
for such application pursuant to Section 2.3 and the applicable conditions
thereto as set forth in this Section 10.1(b) have been satisfied.
(ii) Upon the Company's exercise of the option referenced in Section
10.1(b)(i) applicable to this subsection, the Company may terminate its
obligations under the Outstanding Securities of any Series and this Indenture
with respect to such Series on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such Series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense and request of the Company, shall execute proper instruments
acknowledging the same), except for the following: (1) the rights of Holders of
Outstanding Securities of such Series to receive payments in respect of the
principal of and interest on such Securities when such payments are due, (2) the
Company's obligations with respect to such Securities
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under Sections 2.8, 2.9, 2.11, 3.2, 6.7, 10.4 and 10.5, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder, and (4) this Section
10.1(b).
(iii) The following shall be the conditions to the application of Section
10.1(b)(ii) to the Outstanding Securities of such Series:
(A) The Company shall have irrevocably deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 6.10
who shall agree to comply with the provisions of this Section 10.1(b) applicable
to it) under the terms of an irrevocable trust agreement, as trust funds in
trust solely for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
Securities of such Series, (i) cash in Dollars, or (ii) Government Obligations
maturing as to principal and interest in such amounts and at such times as are
sufficient, to pay the principal of and interest on the Outstanding Securities
of such Series to Maturity or redemption, as the case may be, or (iii) a
combination thereof, in each case sufficient, 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, (x) the principal of and each installment of principal of and
interest, if any, on the Outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest, if any, and
(y) any mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such Series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities. Such irrevocable trust agreement shall include, among other things,
(i) provision for the payments referenced in clauses (x) and (y) of the
immediately preceding sentence, (ii) the payment of the reasonable expenses of
the Trustee incurred or to be incurred in connection with carrying out such
trust provisions, (iii) rights of registration, transfer, substitution and
exchange of Securities of such Series in accordance with the terms stated in
this Indenture and (iv) continuation of the rights and obligations and
immunities of the Trustee as against the Holders of Securities of such Series as
stated in this Indenture.
(B) No Event of Default or event which with notice or lapse to time or both
would constitute an Event of Default with respect to the Securities of such
Series shall have occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit or, insofar as Section 5.1(f) and 5.1(g)
are concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(C) Such deposit or defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which it is bound.
(D) The Company shall have delivered to the Trustee an Opinion of Counsel
of recognized national standing to the effect that Securityholders of such
Series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and discharge and will be subject to federal income
tax on the same amounts and in the same manner and at the same time as would
have been the case if such deposit and defeasance had not occurred.
(E) The Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that all conditions precedent
provided for herein relating to the deposit and defeasance contemplated by this
Section 10.1(b) have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
pursuant to Section 10.1 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the particular Securities of
such Series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any Series, all moneys then held by any Paying Agent (other than the Company)
under the provisions of this Indenture with respect to such Series of Securities
shall, upon demand of the Company, be paid to the Trustee and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying Agent.
Any moneys deposited with or paid to the Trustee or any Paying Agent (including
the Company acting as its own Paying Agent) for the payment of
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<PAGE>
the principal of or interest on any Security of any Series and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Company, promptly be repaid to the Company by the Trustee for such Series or
such Paying Agent (except that with respect to any amounts then held by the
Company in trust as its own Paying Agent no such request need be given and at
such time the Company shall be discharged from its request to hold such moneys
in trust as Paying Agent), and the Holder of the Securities of such Series
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company for
any payment which such Holder may be entitled to collect, and all liability of
the Trustee or any Paying Agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment with respect to moneys deposited with it for
any payment in respect to Securities of any Series, shall at the expense of the
Company, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security Register, notice, that such
moneys remain and that, after a date specified therein, which shall not be less
than thirty days from the date of such mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. Anything in this Article X
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the written request of the Company any money or
Government Obligations held by it as provided in Section 10.1(b)(iii) 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 such defeasance in accordance with the provisions of this Indenture.
SECTION 10.5 Reinstatement of Company's Obligations. If the Trustee is unable to
apply any funds or Government Obligations in accordance with Section 10.1 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities of any Series for which such application is prohibited shall be
revived and reinstated as if no deposit has occurred pursuant to Section 10.1
until such time as the Trustee is permitted to apply all such funds or
Government Obligations in accordance with Section 10.1; provided, however, that
if the Company has made any payment of interest on or principal of any of such
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Securityholders of such Securities to receive
such payment for the funds or Government Obligations held by the Trustee.
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<PAGE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, in any Security, or because
of any indebtedness evidenced thereby, shall be had against any incorporator, as
such or against any past, present or future stockholder, officer or director, as
such, of the Company or of any successor, either directly or through the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration of the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any Person, firm or corporation,
other than the parties hereto, any Paying Agent and their successors hereunder
and the Holders of the Securities any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Company Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee and Securityholders.
Any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders or Securities
to or on the Company may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Company or its counsel is filed by the Company
with the Trustee) to Tosco Corporation, 72 Cummings Road, Stamford, Connecticut
06902, Attention: General Counsel, with a copy to Stroock & Stroock & Lavan,
Seven Hanover Square, New York, New York 10004, Attention: Martin H. Neidell,
Esq. Any notice, direction, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of Securities of any
event such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed by first-class mail, postage prepaid to such
Holders as their names and addresses appear in the Security Register within the
time prescribed. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a sufficient giving
of such notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
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<PAGE>
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto, (b) 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, (c) a statement that, in the opinions of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of any officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable case should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. Unless
otherwise specified in a Security, if the date of Maturity of interest on or
principal of the Securities of any Series or the date fixed for redemption or
repayment of any such Security shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
Maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act. If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with another provision included in this Indenture which is required
by the Trust Indenture Act, such required provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture and each Security shall
be deemed to be a contract under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of such State.
SECTION 11.9 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings; Gender. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof. The use of the masculine, feminine or neuter gender
herein shall not limit in any way the applicability of any term or provision
hereof.
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ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article shall
be applicable to the Securities of any Series which are redeemable before their
final Maturity or to any sinking fund for the retirement of Securities of a
Series except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
SECTION 12.2 Election to Redeem; Notice of Redemption; Partial Redemptions.
The election of the Company to redeem any Securities shall be evidenced by, or
pursuant to, a resolution of the Board of Directors. Notice of redemption to the
Holders of Securities of any Series required to be redeemed or to be redeemed as
a whole or in part at the option of the Company shall be given by giving notice
of such redemption as provided in Section 11.4, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such Series. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a Series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such Series.
The notice of redemption to each such Holder shall specify the date fixed
for redemption, the "CUSIP" number or numbers for such Securities, the
redemption price, the Place or Places of Payment, that payment will be made upon
presentation and surrender of such Securities, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in
such notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all of the Securities
of any Series are to be redeemed, the notice of redemption shall specify the
number of the Securities of such Series to be redeemed. In case any Security of
a Series is to be redeemed in part, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such Series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any Series to be redeemed at the
option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. If such
notice is to be given by the Trustee, the Company shall provide notice of such
redemption to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee). If
such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at least 2 days
prior to the date such notice is given to such Holders, but in any event at
least 15 days prior to the date fixed for redemption (unless a shorter notice
shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not later than the
redemption date specified in the notice of redemption given as provided in this
Section, the Company will have on deposit with the Trustee or with one or more
Paying Agents (or, if the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust as provided in Section 3.3) in funds available on
such date an amount of money sufficient to redeem on the redemption date all the
Securities of such Series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all the Outstanding Securities of a Series are to be redeemed at the
election of the Company, the Company will deliver to the Trustee at least 60
days prior to the date fixed for redemption an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a Series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such Series to be redeemed in whole or in part and the Trustee shall promptly
notify the Company in writing of the Securities of such Series selected for
redemption and, in the case of any Securities of such Series selected for
partial redemption, the principal amount thereof to be redeemed. However, if
less than all the Securities of any Series with differing issue dates, interest
rates and stated maturities are to be redeemed, the Company in its sole
discretion shall select the particular Securities to be redeemed and shall
notify the Trustee in writing thereof at least 45 days prior to the relevant
redemption date. Securities may be redeemed in part in multiples equal to the
minimum authorized denomination for Securities of such Series or any multiple
thereof. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any Series
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
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SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and, except as provided in Section 6.1 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a Place of Payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that, payment of interest
becoming due on or prior to the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate or interest or
yield to maturity (in the case of a Discount Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to or
on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Company and delivered
to the Trustee at least 30 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any Series
is herein referred to as a "mandatory sinking fund payment," and any payment in
excess of such minimum amount provided for by the terms of Securities of any
Series is herein referred to as an "optional sinking fund payment". The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such Series (not previously so credited) redeemed by the Company
through any optional redemption provisions contained in the terms of such
Series. Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date
for any Series of Securities, the Company will deliver to the Trustee a written
statement (which need not contain the statements required by Section 11.5)
signed by an authorized officer of the Company (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash (except as
otherwise specified pursuant to Section 2.3 for the Securities of such Series),
and the portion to be satisfied by delivery or credit of Securities of such
Series, (b) stating that none of the Securities of such Series of which credit
is sought has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such Series have
occurred (which have not been waived or cured) and are continuing, (d) stating
whether or not the Company intends to exercise its right to make an optional
sinking fund payment with respect to such Series and, if so, specifying the
amount of such optional sinking fund payment which the Company intends to pay on
or before the next succeeding sinking fund payment date and (e)
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<PAGE>
specifying such sinking fund payment date. Any Securities of such Series to be
credited and required to be delivered to the Trustee in order for the Company to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such written statement. Such written statement shall be
irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Company, on or before any such sixtieth day, to deliver such
written statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such Series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
Series in respect thereof and (ii) that the Company will make no optional
sinking fund payment with respect to such Series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding payments made in cash shall exceed $100,000 with
respect to the Securities of any particular Series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of Securities
of such Series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $100,000 or
less and the Company makes no such request then it shall be carried over until a
sum in excess of $100,000, is available. The Trustee shall select, in the manner
provided in Section 12.2 and giving effect to any exclusions required pursuant
to Section 12.4, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such Series to absorb said cash, as nearly as
may be possible, and shall (if requested in writing by the Company) inform the
Company of the serial numbers of the Securities of such Series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the Company
(or the Company, if it shall so notify the Trustee in writing) shall cause
notice of redemption of the Securities of such Series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such Series at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such Series shall be added to the
next cash sinking fund payment for such Series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the Stated Maturity date of the Securities of any
particular Series (or earlier, if such Maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such Series shall
be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such Series at Maturity.
Unless otherwise specified pursuant to Section 2.3, not later than the
sinking fund payment date, the Company shall have paid to the Trustee in cash or
shall otherwise provide in funds available on such date for the payment of all
principal and interest accrued to the date fixed for redemption on Securities to
be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
Series with sinking fund moneys or mail any notice of redemption of Securities
for such Series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such Series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall during the
continuance of such default or Event of Default, be deemed to have been
collected under Article V and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 5.9 or
the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
SECTION 12.6 Repayment at the Option of the Holders. Securities of any
Series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with the terms of the Securities
of such Series.
The repayment of any principal amount of Securities pursuant to such option
of the Holder to require repayment of Securities before their Stated Maturity,
for purpose of Section 10.1, shall not operate as a payment, redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be cancelled.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereto affixed and
attested, all as of the day and year first above written.
TOSCO CORPORATION
By:
--------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
--------------------------------
Name:
Title:
34
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[FORM OF FACE OF SECURITY]
NO. $
CUSIP
TOSCO CORPORATION
_____________________% [______________] DUE _________________
Tosco Corporation, a Nevada corporation (herein called the "Issuer", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to _____________________ or
registered assigns, the principal sum of _____________________ United States
Dollars on _____________________, and to pay interest, semiannually on
_____________________ and _____________________ of each year, commencing
_____________________, on said principal sum, at the rate per annum specified in
the title of this [____________], on a semiannual bond equivalent basis using a
360-day year composed of twelve 30-day months from the _____________________ or
the _____________________, as the case may be, next preceding the date of this
[__________] to which interest has been paid, unless the date hereof is a date
to which interest has been paid in which case from the date of this
[__________], or unless no interest has been paid on this [____________], in
which case from _____________________, until payment of said principal sum has
been made or duly provided for. Payments of such principal and interest shall be
made at the office or agency of the Issuer maintained for such purpose, which,
subject to the right of the Issuer to vary or terminate the appointment of such
agency, shall initially be at the principal corporate trust office of State
Street Bank and Trust Company in Boston, Massachusetts; provided, that payment
of interest may be made at the option of the Issuer by check mailed to the
address of the person entitled thereto as such address shall appear on the
Security Register. [Notwithstanding the foregoing, if the date hereof is after
the ________ day of ________ or ________, as the case may be, and before the
following _____________________ or _____________________ this [____________]
shall bear interest from such _____________________ or _____________________ ;
provided that if the Issuer shall default in the payment of interest due on such
_____________________ or _____________________, then this [____________] shall
bear interest from the next preceding _____________________ or
_____________________ to which interest has been paid or, if no interest has
been paid on this [____________], from ____________.] The interest so payable on
any _____________________ or _____________________ will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this [____________] is registered at the close of
business on the _____________________ or _____________________, as the case may
be, next preceding such _____________________ or _____________________.
Reference is made to the further provisions of this [____________] set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This [____________] shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, TOSCO CORPORATION has caused this instrument to be
signed by facsimile by its duly authorized officers and has caused a facsimile
of its corporate seal to be affixed hereunto or imprinted hereon.
TOSCO CORPORATION
By:
-----------------------------
ATTEST:
- -----------------------------
35
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the Series designated herein referred to
in the within-mentioned Indenture.
Dated: STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Signatory
or
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
--------------------------------
as Authentication Agent
By:
--------------------------------
Authorized Signatory
[FORM OF REVERSE OF SECURITY]
TOSCO CORPORATION
_____________________% [__________] DUE _________________
This [__________] is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the Series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of ________________, 1996 (herein
called the "Indenture"), duly executed and delivered by the Issuer to State
Street Bank and Trust Company, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. The Securities may be issued in one or more Series, which different
Series may be issued in various aggregate principal amounts, may bear interest
at different rates, which may be fixed or variable, may be subject to different
redemption provisions (if any), may be subject to different sinking, purchase or
analogous funds (if any), and may otherwise vary as provided in the Indenture.
This [__] is one of a Series designated as the ___% [__________________] Due
_____________ of the Issuer, limited in aggregate principal amount to
____________________.
In case an Event of Default with respect to the __________% [____________]
Due _______________ shall have occurred and be continuing, the principal hereof
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of a majority of the aggregate principal amount
of the Securities at the time Outstanding of all Series to be affected (treated
as one class), evidenced as provided in the Indenture, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities of each such Series;
provided, however, that no
36
<PAGE>
such supplemental indenture shall (i) extend the Stated Maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable upon redemption thereof, or impair or affect the right of any
Holder to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, without
the consent of the Holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities of any Series, the Holders of which are
required to consent to any such supplemental indenture, without the consent of
the Holder of each Security affected. It is also provided in the Indenture that,
with respect to certain defaults or Events of Default regarding the Securities
of any Series, prior to any declaration accelerating the maturity of such
Securities, the Holders of a majority in aggregate principal amount Outstanding
of the Securities of such Series (or, in the case of certain defaults or Events
of Default, all or certain Series of the Securities, may on behalf of the
Holders of all the Securities of such Series (or all or certain Series of the
Securities), as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default in the payment of the principal of or premium, if any, or interest on
any of the Securities. Any such consent or waiver by the Holder of this [__]
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this
[_______________] and any [__________________] which may be issued in exchange
or substitution therefor, irrespective of whether or not any notation thereof is
made upon this [___________] or such other [_______________].
No reference herein to the Indenture, and no provision of this
[_________________] or of the Indenture, shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of [(and
premium, if any)] and interest on this [_______________] in the manner, at the
respective times, at the rate, and in the coin or currency herein prescribed.
The [_______________] are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple of $1,000. As provided in
the Indenture, and subject to certain limitations set forth therein,
[_______________] in registered form are exchangeable for one or more new
Securities of this Series and of like tenor, for the same aggregate principal
amount and of authorized denominations, as requested by the Holder surrendering
the same at the agency of the Issuer in _____________________ [or
_____________________]. No service charge shall be made for any such exchange,
but the Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
[The [_______________] may be redeemed at the option of the Issuer as a
whole, or from time to time in part, on any date after _____________________ and
prior to maturity, upon mailing a notice of such redemption not less than 15 nor
more than 60 days prior to the date fixed for redemption to the Holders of
[____________________] at their last registered addresses, all as further
provided in the Indenture, at the following redemption prices (expressed in
percentages of the principal amount) together in each case with accrued interest
to the date fixed for redemption:
If redeemed during the twelve-month period beginning
[_____________________]:
YEAR PERCENTAGE YEAR PERCENTAGE
---- ---------- ---- ----------
[The [_____________________] are also subject to redemption, through the
operation of the sinking fund as herein provided on _____________________ and on
each _____________________ thereafter to and including _____________________ on
notice as set forth above and at 100% of the principal amount thereto (the
sinking fund redemption.)]
[(As and for a sinking fund for the retirement of the
[_____________________] and so long as any of the [_____________________] remain
outstanding and unpaid, the Issuer will pay to the Trustee in cash (subject to
the right to deliver certain [_____________________] in credit therefor as
provided in the Indenture), on or before _____________________ and on or before
_____________________ in each year thereafter to and including
_____________________ an amount sufficient to redeem $_____________________
principal amount of the [_____________________] (or such lesser amount equal to
the principal amount then Outstanding) at the sinking fund redemption price.]
37
<PAGE>
[At its option, the Issuer may, in cash, pay into the sinking fund for the
retirement of [____________________], except as provided in the Indenture, on or
before ____________________ and on or before ____________________ in each year
thereafter to and including _____________________, an amount sufficient to
redeem an additional principal amount of [_____________________] up to but not
to exceed $_____________________ at the sinking fund redemption price. To the
extent that the right to such optional sinking fund payment is not exercised in
any year, it shall not be cumulative or carried forward to any subsequent
year.)]
Upon due presentment for registration of transfer of this [_______________]
at the office or agency of the Issuer in _____________________ [or
_____________________], a new [_____________________] or [_____________________]
of this Series of authorized denominations for an equal aggregate principal
amount will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem
and treat the registered Holder hereof as the absolute owner of this
[_________________] (whether or not this [______________] shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and interest hereon, and for all other purposes, and neither
the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in this
[________________], or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, of the Issuer or of any successor corporation, either
directly or through the Issuer of any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
The Indenture with respect to any Series will be discharged and cancelled
except for certain Sections thereof, subject to the terms of the Indenture, upon
the payment of all the Securities of such Series or upon the irrevocable deposit
with the Trustee of cash or Government Obligations (or a combination thereof)
sufficient for such payment in accordance with Article X of the Indenture.
The Indenture and this [_____________________] shall be deemed to be
contracts made under the laws of the State of New York, and for all purposes
shall be governed by, and construed in accordance with, the laws of such State.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
38
<PAGE>
---------------------
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number of Assignee
[_____________________] (Please Print or Typewrite Name and Address of Assignee)
the within [________________] and hereby does irrevocably constitute and appoint
_____________________ Attorney to transfer said [_______________] on the books
of the within-mentioned Company, with full power of substitution in the
premises.
Dated: ______________ __________________________________________
______________________________________________________
*NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the [_________________] in every particular, without
alteration or enlargement or any change whatever.
- ------------
* Your signatures must be guaranteed by a member of the Medallion System.
[OPTION TO ELECT REPAYMENT
The undersigned hereby requests and instructs the Company to repay this
[__] (or portion thereof specified below) pursuant to its terms at a price equal
to the principal amount thereof, together with interest accrued to the date of
repayment, to the undersigned:
________________. Please Print or Typewrite Name and Address of the Undersigned.
For this [______________] to be repaid the Company must receive, at the
office of the Trustee, State Street Bank and Trust Company, or at such other
place or places of which the Company shall from time to time notify the Holder
of this [______________], during the period from and including
[________________] to and including the close of business on [_________________]
(or if [_________________] is not a Business Day, the immediately preceding
Business Day), (i) this [________________] with this "Option to Elect Repayment"
form duly completed, or (ii) a communication in the form specified above in this
[________________]. The exercise of this "Option to Elect Repayment" is
irrevocable.
If less than the entire principal amount of this [__________________] is to
be repaid, specify the portion thereof (which shall be in increments of $1,000)
which the Holder elects to have repaid: $______________; and specify the
denomination or denominations (which shall be in increments of $1,000) of the
(_______________) to be issued to the Holder for the portion of this
[______________] not being repaid (in the absence of any such specification, one
such [________________] will be issued for the portion not being repaid):
$_______________.
Dated: ______________ __________________________________________
______________________________________________________
*Note: The signature on this Option to Elect Repayment
must correspond with the name as written upon the
face of this [________________] in every particular
without alteration or enlargement.
Holder's Tax I.D. Number:_________________]
39
EXHIBIT 5.1
April 15, 1996
Tosco Corporation
72 Cummings Point Road
Stamford, CT 06902
Ladies and Gentlemen:
We have acted as counsel to Tosco Corporation, a Nevada corporation (the
"Company") in connection with the preparation and filing of a Registration
Statement on Form S-3 and Post-Effective Amendment No. 1 to Registration
Statement on Form S-3 (File No. 33-59423) (together, the "Registration
Statement") relating to the public offering of aggregate proceeds not to exceed
$200,000,000 of debt securities of the Company (the "Securities"). We may also
act as counsel to the Company in connection with the possible future
registration of up to $40,000,000 aggregate proceeds of Securities that may be
registered pursuant to Rule 462(b) under the Securities Act by means of an
additional registration statement relating to the Registration Statement (any
such additional registration statement, the "462(b) Registration Statement").
We have examined copies of the Restated Articles of Incorporation and
Bylaws of the Company, the Registration Statement and all exhibits thereto, and
such other corporate records and documents and papers, statutes and authorities,
and have made such examinations of law, as we have deemed necessary to form the
basis for the opinion hereinafter expressed. In our examination of such
material, we have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals and the conformity to original
documents of all copies submitted to us. As to various questions of fact
material to such opinion, we have relied upon statements and certificates of
officers and representatives of the Company and others.
The Securities are to be issued pursuant to an indenture (the "Indenture")
between the Company and State Street Bank and Trust Company, as trustee (the
"Trustee"). Certain of the terms of each series of Securities may be set forth
in a supplemental indenture to the Indenture (each, a "Supplemental Indenture")
between the Company and the Trustee.
Attorneys involved in the preparation of this opinion are admitted to
practice law in the State of New York and we do not express any opinion herein
concerning any law other than the laws of the State of New York and the laws of
the United States of America.
Based upon the foregoing, we are of the opinion that when the issuance,
execution and delivery of each series of Securities (including any Securities
issued pursuant to the 462(b) Registration Statement, if any) has been
authorized by all necessary corporate action of the Company (subject to the
terms thereof being otherwise in compliance with applicable law at such time)
and otherwise in accordance with the provisions of the Indenture and the related
Supplemental Indenture, if any, and when such Securities have been duly
executed, authenticated and delivered by the Trustee and sold as described in
the Registration Statement, (a) such Securities will constitute legal and
binding obligations of the Company, enforceable in accordance with their terms,
subject to the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto, except that we express no opinion with
respect to the application of equitable principles in any proceeding, whether at
law or in equity, and (b) the holders of such Securities will be entitled to the
benefits provided by the Indenture and related Supplemental Indenture, if any.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, to the incorporation by reference of this opinion in any
462(b) Registration Statement, to the reference to us in the prospectus and each
related prospectus supplement forming a part of the Registration Statement, and
to the filing of this opinion as an exhibit to any application made by or on
behalf of the Company or any dealer in connection with the registration of the
Securities under the securities or blue sky laws of any state or jurisdiction.
In giving such permission, we do not admit hereby that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
STROOCK & STROOCK & LAVAN
<TABLE>
EXHIBIT 12.1
TOSCO CORPORATION
COMPUTATION OF RATIO OF EARNINGS FROM CONTINUING OPERATIONS
TO FIXED CHARGES(A)
(DOLLAR AMOUNTS IN THOUSANDS EXCEPT RATIO DATA)
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------------------
1991 1992 1993 1994 1995
------- ------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Net income (loss) from continuing
operations before accounting
changes and extraordinary items .......... $68,102 $30,247 $ 80,579 $ 83,843 $ 77,058
Provision (credit) for income taxes, net of
extraordinary credit(b) .................. 2,363 20,766 51,175 50,006 50,381
------- ------- -------- -------- --------
Pre-tax earnings (loss) from continuing
operations before accounting changes
and extraordinary items .................. $70,465 $51,013 $131,754 $133,849 $127,439
======= ======= ======== ======== ========
Earnings:
Pre-tax earnings (loss) from
continuing operation ................... $70,465 $51,013 $131,754 $133,849 $127,439
Total fixed charges ...................... 27,683 29,823 57,737 72,572 82,353
Capitalized interest ..................... (682) (4,730)
------- ------- -------- -------- --------
Total earnings from continuing
operations ............................. $98,148 $80,836 $189,491 $205,739 $205,062
======= ======= ======== ======== ========
Fixed charges
Interest (expensed), including the
amortization of debt expense, discount
or premium ............................. $22,737 $23,941 $ 48,868 $ 58,315 $ 59,815
Capitalized interest ..................... 682 4,730
Estimated interest factor on operating
lease payments ......................... 4,946 5,882 8,869 13,575 17,808
------- ------- -------- -------- --------
Total fixed changes ........................ $27,683 $29,823 $ 57,737 $ 72,572 $ 82,353
======= ======= ======== ======== ========
Ratio of earnings from continuing
operations to fixed charges .............. 3.55 2.71 3.28 2.83 2.49
==== ==== ==== ==== ====
</TABLE>
- ------------
(a) Reflects Seminole Fertilizer Corporation as a discontinued operation for all
periods.
(b) Reflects the provision for income taxes for 1992-1995 at regular tax rates
pursuant to the provisions of SFAS No. 109 adopted January 1, 1992.
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Tosco Corporation on Form S-3 (File No. 333- ) and Post-Effective Amendment
No. 1 to the registration statement of Tosco Corporation on Form S-3 (File No.
33-59423) of our report dated January 25, 1996, except as to the information in
Note 16, for which the date is February 16, 1996, on our audits of the
consolidated financial statements and the financial statement schedule of Tosco
Corporation. We also consent to the reference to our firm under the caption
"Experts."
Coopers & Lybrand L.L.P.
Oakland California
April 12, 1996
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) __
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
MASSACHUSETTS 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Senior Vice President and Corporate Secretary
225 Franklin Street, Boston, Massachusetts 02110
(617)654-3253
(Name, address and telephone number of agent for service)
------------
TOSCO CORPORATION
(Exact name of obligor as specified in its charter)
CONNECTICUT 95-1865716
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
72 CUMMINGS POINT ROAD
STAMFORD, CONNECTICUT 06902
(Address of principal executive offices) (Zip Code)
------------
FIXED RATE BONDS
(Title of indenture securities)
<PAGE>
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See note on page 6.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee
to commence business was necessary or issued is on file with
the Securities and Exchange Commission as Exhibit 2 to
Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940)
and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE
DOCUMENTS SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein
by reference thereto.
1
<PAGE>
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS
IN DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility and Qualification
which relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Boston
and The Commonwealth of Massachusetts, on the 12TH DAY OF APRIL 12, 1996.
STATE STREET BANK AND TRUST COMPANY
/s/ RUTH A. SMITH
By: ---------------------
RUTH A. SMITH
VICE PRESIDENT
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issuance by TOSCO
CORPORATION. of its FIXED RATE BONDS, we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
/s/ RUTH A. SMITH
By: ---------------------
RUTH A. SMITH
VICE PRESIDENT
DATED: APRIL 12, 1996
3
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company of
Boston, Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this commonwealth
and a member of the Federal Reserve System, at the close of business December
31, 1995, published in accordance with a call made by the Federal Reserve Bank
of this District pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks under General Laws,
Chapter 172, Section 22(a).
Thousands of
ASSETS Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................ 1,331,827
Interest-bearing balances ......................................... 5,971,326
Securities .......................................................... 6,325,054
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary ............................... 5,436,994
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 4,308,339
Allowance for loan and lease losses ................. 63,491
Loans and leases, net of unearned income and allowances ........... 4,244,848
Assets held in trading accounts ..................................... 1,042,846
Premises and fixed assets ........................................... 374,362
Other real estate owned ............................................. 3,223
Investments in unconsolidated subsidiaries .......................... 31,624
Customers' liability to this bank on acceptances outstanding ........ 57,472
Intangible assets ................................................... 68,384
Other assets......................................................... 670,058
----------
Total assets ........................................................ 25,558,018
==========
LIABILITIES
Deposits:
In domestic offices ............................................... 6,880,231
Noninterest-bearing .............................. 4,728,115
Interest-bearing ................................. 2,152,116
In foreign offices and Edge subsidiary ............................ 9,607,427
Noninterest-bearing .............................. 28,265
Interest-bearing ................................. 9,579,162
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary ............................... 5,913,969
Demand notes issued to the U.S. Treasury and Trading Liabilities .... 530,406
Other borrowed money ................................................ 493,191
Bank's liability on acceptances executed and outstanding ............ 57,387
Other liabilities ................................................... 620,287
----------
Total liabilities ................................................... 24,102,898
----------
EQUITY CAPITAL
Common stock ........................................................ 29,176
Surplus ............................................................. 228,448
Undivided profits ................................................... 1,197,496
----------
Total equity capital ................................................ 1,455,120
----------
Total liabilities and equity capital ................................ 25,558,018
==========
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
5
