S-3/A
As filed with the Securities and
Exchange Commission on February 12, 2009
Registration
No. 333-151787
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT NO. 1
ON
FORM S-3 TO FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CVR ENERGY, INC.
(Exact name of registrant as
specified in its charter)
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Delaware
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61-1512186
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer Identification
No.)
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2277 Plaza Drive,
Suite 500
Sugar Land, Texas
77479
(281) 207-3200
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
John J. Lipinski
2277 Plaza Drive,
Suite 500
Sugar Land, Texas
77479
(281) 207-3200
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
Michael A. Levitt
Fried, Frank, Harris, Shriver
& Jacobson LLP
One New York Plaza
New York, NY 10004
(212) 859-8000
Approximate date of commencement
of proposed sale to the public:
From time to time after the
effective date of this registration statement as determined by
market conditions and other factors.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
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, other than securities
offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
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. o
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. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the
Exchange Act. (Check one):
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Large
accelerated
filer o
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Accelerated
filer þ
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Non-accelerated
filer o
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Smaller reporting
company o
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(Do not check if a smaller
reporting company)
CALCULATION OF REGISTRATION
FEE
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Proposed
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Maximum
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Proposed
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Amount of
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Title of Each Class of
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Amount to be
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Offering Price
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Maximum Aggregate
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Registration
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Securities to be Registered
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Registered
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per Unit
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Offering Price
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Fee
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Primary Offering(1):
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Common Stock, par value $0.01 per share
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(2)(3)
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(3)(4)
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(3)(5)
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(3)
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Preferred Stock, par value $0.01 per share
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(2)(3)
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(3)(4)
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(3)(5)
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(3)
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Senior Debt Securities and Subordinated Debt Securities
(collectively, Debt Securities)
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(2)(3)
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(3)(4)
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(3)(5)
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(3)
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Warrants
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(2)(3)
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(3)(4)
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(3)(5)
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(3)
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Subscription Rights
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(2)(3)
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(3)(4)
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(3)(5)
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(3)
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Total Primary Offering
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(2)(3)
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(3)(4)
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$250,000,000(5)
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$9,825(6)
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Secondary Offering:
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Common Stock, par value $0.01 per share
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11,500,000(7)
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$25.51(8)
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$293,365,000(8)(9)
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$11,530(10)
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Common Stock, par value $0.01 per share
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3,500,000(7)
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$6.08(8)
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$21,280,000(8)(9)
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$837(6)
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Total Secondary Offering
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15,000,000(7)
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$314,645,000(8)(9)
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$12,367(6)
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Total
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$564,645,000
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$22,192(6)
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(1)
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These offered securities may be
sold separately, together or as units with other offered
securities.
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(2)
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An indeterminate number or amount
of the registrants securities may from time to time be
issued at indeterminate prices and sold by the registrant
pursuant to this registration statement.
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(3)
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Not required to be included in
accordance with General Instruction II.D of Form S-3 under
the Securities Act.
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(4)
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The proposed maximum offering price
per unit will be determined from time to time in connection with
the issuance by the registrant of the securities registered
hereunder.
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(5)
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In no event will the aggregate
offering price of all securities issued from time to time
pursuant to this registration statement for the primary offering
exceed $250,000,000, unless the Registrant files an additional
registration statement in accordance with Rule 462(b) under
the Securities Act.
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(6)
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The registrant paid a fee of
$11,530 in connection with the initial filing of this
registration statement on June 19, 2008. In addition, the
registrant paid a filing fee of $4,745 with respect to the
registration statement on Form S-1 for common units
representing limited partner interests of CVR Partners, LP, its
majority-owned subsidiary, file no. 333-149423, which
registration statement was withdrawn on June 19, 2008, and
$5,650 with respect to its registration statement on
Form S-1 for convertible senior notes due 2013, file no.
333-151786, which registration statement was withdrawn on
November 4, 2008. Pursuant to Rule 457(p) under the
rules and regulations of the Securities Act, all of the filing
fees paid in connection with the withdrawn registration
statements are offset against the filing fee due in connection
with this registration statement.
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(7)
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Pursuant to Rule 416(a) under
the rules and regulations under the Securities Act, this
registration statement also registers such additional shares of
the registrants common stock as may become issuable with
respect to the shares being registered hereunder as a result of
stock splits, stock dividends or similar transactions.
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(8)
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In the case of 11,500,000 of the
shares of common stock to be sold by the selling stockholders
pursuant to this registration statement, the proposed maximum
offering price per unit of $25.51 was computed based on the
average of the high and low prices reported for the
registrants common stock traded on the New York Stock
Exchange on June 13, 2008; this computation was made when
the registration statement was originally filed on June 19,
2008 and resulted in a filing fee of $11,530. In the case of
3,500,000 shares of common stock to be sold by the selling
stockholders pursuant to this registration statement, the
proposed maximum offering price per unit of $6.08 was computed
based on the average of the high and low prices reported for the
registrants common stock traded on the New York Stock
Exchange on February 9, 2009 and resulted in a filing fee
of $837. For 11,500,000 of the shares, the maximum offering
price per unit is $25.51 and the bona fide estimate of the
maximum offering price is $293,365,000. For 3,500,000 of the
shares, the maximum offering price per unit is $6.08 and the
bona fide estimate of the maximum offering price is $21,280,000.
However, the maximum offering price per unit and the maximum
aggregate offering price are included herein solely for purposes
of calculating the registration fee, and the maximum aggregate
offering price for the 15,000,000 shares in the aggregate
may exceed $314,645,000 if the shares are sold at prices higher
than their estimated maximum offering prices per unit.
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(9)
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Estimated solely for the purpose of
calculating the amount of the registration fee pursuant to
Rule 457(o) under the rules and regulations of the
Securities Act.
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(10)
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Previously paid on June 19,
2008.
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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 Securities
and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. Neither we nor the Selling Stockholders may sell these
securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where
the offer or sale is not permitted.
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Subject to Completion. Dated
February 12, 2009.
CVR Energy,
Inc.
Common Stock
Preferred Stock
Debt Securities
Warrants
Subscription Rights
CVR Energy, Inc. may offer to sell under this prospectus, from
time to time, shares of common stock, preferred stock (including
preferred stock that may be convertible into or exchangeable for
common stock), senior or subordinated debt securities (including
senior or subordinated debt securities that may be convertible
into or exchangeable for common stock) and warrants and
subscription rights to purchase any of the other securities that
may be sold by us under this prospectus. In addition, the
selling stockholders named in this prospectus may offer for
resale, from time to time, up to 15,000,000 shares of our
common stock. We refer to our common stock (whether offered by
us or the selling stockholders), our preferred stock, our debt
securities, our warrants and our subscription rights
collectively as securities.
The securities may be offered or sold by us or a selling
stockholder at fixed prices, at prevailing market prices at the
time of sale or at prices negotiated with purchasers, to or
through underwriters, broker-dealers, agents, or through any
other means described in this prospectus under Plan of
Distribution. We will bear all costs, expenses and fees in
connection with the registration of the securities. The selling
stockholders will pay all commissions and discounts, if any,
attributable to the sale or disposition of their shares of our
common stock, or interests therein.
Our common stock, par value $0.01 per share, is listed on the
New York Stock Exchange under the symbol CVI. As of
February 9, 2009, the closing price of our common stock was
$6.14.
This prospectus describes the general manner in which securities
may be offered and sold by us and the selling stockholders. We
will provide supplements to this prospectus describing the
specific manner in which these securities may be offered and
sold to the extent required by law. We urge you to read
carefully this prospectus, any accompanying prospectus
supplement, and any documents we incorporate by reference into
this prospectus and any accompanying prospectus supplement
before you make your investment decision.
We and the selling stockholders may sell securities to or
through underwriters, dealers or agents. The names of any
underwriters, dealers or agents involved in the sale of any
securities and the specific manner in which they may be offered
will be set forth in the prospectus supplement covering the sale
of those securities to the extent required by law.
Investing in our securities involves risks. You should
carefully consider all of the information set forth in this
prospectus, including the risk factors described under
Risk Factors filed as Exhibit 99.1 to our most
recent Quarterly Report on
Form 10-Q
for the fiscal quarter ended September 30, 2008 filed with
the Securities and Exchange Commission on November 13, 2008
(which document is incorporated by reference herein), as well as
the risk factors and other information in any accompanying
prospectus supplement and any documents we incorporate by
reference into this prospectus and any accompanying prospectus
supplement, before deciding to invest in any of our securities.
See Incorporation By Reference.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus
is ,
2009.
ABOUT THIS
PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, which we
refer to as the SEC, using the SECs shelf
registration rules. Pursuant to this prospectus, we may sell,
from time to time, any combination of the securities described
in this prospectus in one or more offerings in an aggregate
amount not to exceed $250 million, subject to our ability
to file a registration statement pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the
Securities Act), and the selling stockholders named
on page 8 may, from time to time, sell up to a total of
15,000,000 shares of our common stock described in this
prospectus in one or more offerings.
In this prospectus, all references to the Company,
CVR Energy, we, us and
our refer to CVR Energy, Inc., a Delaware
corporation, and its consolidated subsidiaries, and all
references to the nitrogen fertilizer business and
the Partnership refer to CVR Partners, LP, a
Delaware limited partnership that owns and operates our nitrogen
fertilizer facility, unless the context otherwise requires or
where otherwise indicated. The Company currently owns all of the
interests in the Partnership other than the managing general
partner interest and associated incentive distribution rights.
When we or one or more selling stockholders sells securities
under this prospectus, we will, if necessary and required by
law, provide a prospectus supplement that will contain specific
information about the terms of that offering. Any prospectus
supplement may also add to, update, modify or replace
information contained in this prospectus. This prospectus
contains summaries of certain provisions contained in some of
the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries
are qualified in their entirety by reference to the actual
documents. Copies of some of the documents referred to herein
have been filed or will be filed or incorporated by reference as
exhibits to the registration statement of which this prospectus
is a part, and you may obtain copies of those documents as
described below in the section entitled Where You Can Find
More Information.
You should not assume that the information in this prospectus,
any accompanying prospectus supplement or any documents we
incorporate by reference into this prospectus and any prospectus
supplement is accurate as of any date other than the date on the
front of those documents. Our business, financial condition,
results of operations and prospects may have changed since those
dates.
PROSPECTUS
SUMMARY
We are an independent refiner and marketer of high value
transportation fuels and, through a limited partnership, a
producer of ammonia and urea ammonia nitrate, or UAN,
fertilizers. We are one of only eight petroleum refiners and
marketers located within the mid-continent region (Kansas,
Oklahoma, Missouri, Nebraska and Iowa). The nitrogen fertilizer
business is the only operation in North America that utilizes a
petroleum coke, or pet coke, gasification process.
Our petroleum business includes a 115,000 barrel per day,
or bpd, complex full coking medium-sour crude refinery in
Coffeyville, Kansas. In addition, our supporting businesses
include (1) a crude oil gathering system serving central
Kansas, northern Oklahoma, southwestern Nebraska and Colorado,
(2) storage and terminal facilities for asphalt and refined
fuels in Phillipsburg, Kansas, (3) a 145,000 bpd
pipeline system that transports crude oil to our refinery and
associated crude oil storage tanks with a capacity of
approximately 1.2 million barrels and (4) a rack
marketing division supplying product through tanker trucks for
distribution directly to customers located in close geographic
proximity to Coffeyville and Phillipsburg and to customers at
throughput terminals on Magellan Midstream Partners L.P.s
refined products distribution systems. In addition to rack
sales, we make bulk sales (sales through third party pipelines)
into the mid-continent markets via Magellan and into Colorado
and other destinations utilizing the product pipeline networks
owned by Magellan, Enterprise Products Partners L.P. and NuStar
Energy L.P. Our refinery is situated approximately
100 miles from Cushing, Oklahoma, one of the largest crude
oil trading and storage hubs in the United States, served by
numerous pipelines from locations including the U.S. Gulf
Coast and Canada, providing us with access to virtually any
crude oil variety in the world capable of being transported by
pipeline.
The nitrogen fertilizer business consists of a nitrogen
fertilizer manufacturing facility comprised of (1) a 1,225
ton-per-day
ammonia unit, (2) a 2,025
ton-per-day
UAN unit and (3) an 84 million standard cubic foot per
day gasifier complex. The nitrogen fertilizer business is the
only operation in North America that utilizes a petroleum coke
gasification process to produce ammonia. For the nine months
ended September 30, 2008, approximately 70% of the ammonia
produced by the fertilizer plant was further upgraded to UAN
fertilizer (a solution of urea, ammonium nitrate and water used
as a fertilizer). Furthermore, on average during the last four
years, over 75% of the pet coke utilized by the fertilizer plant
was produced and supplied to the fertilizer plant as a
by-product of our refinery. As such, the nitrogen fertilizer
business benefits from high natural gas prices, as fertilizer
prices generally increase with natural gas prices, without a
directly related change in cost (because pet coke rather than
natural gas is used as a primary raw material).
CVR Energy, Inc. was incorporated in Delaware in September 2006.
Our principal executive offices are located at 2277 Plaza Drive,
Suite 500, Sugar Land, Texas 77479, and our telephone
number is
(281) 207-3200.
Our website address is www.cvrenergy.com. Information
contained in or linked to or from our website is not a part of
this prospectus.
1
RISK
FACTORS
You should carefully consider the Risk Factors filed
as Exhibit 99.1 to our most recent Quarterly Report on
Form 10-Q
for the quarter ended September 30, 2008, filed with the
SEC on November 13, 2008 (which document is incorporated by
reference herein), as well as other risk factors described under
the caption Risk Factors in any accompanying
prospectus supplement and any documents we incorporate by
reference into this prospectus, including all future filings we
make with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 (the Exchange
Act), before deciding to invest in any of our securities.
See Incorporation By Reference.
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CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. We claim
the protection of the safe harbor for forward-looking statements
provided in the Private Securities Litigation Reform Act of
1995, Section 27A of the Securities Act and
Section 21E of the Exchange Act. Statements that are
predictive in nature, that depend upon or refer to future events
or conditions or that include the words believe,
expect, anticipate, intend,
estimate and other expressions that are predictions
of or indicate future events and trends and that do not relate
to historical matters identify forward-looking statements. Our
forward-looking statements include statements about our business
strategy, our industry, our future profitability, our expected
capital expenditures and the impact of such expenditures on our
performance, the costs of operating as a public company, our
capital programs and environmental expenditures. These
statements involve known and unknown risks, uncertainties and
other factors, including the factors described under Risk
Factors, that may cause our actual results and performance
to be materially different from any future results or
performance expressed or implied by these forward-looking
statements. Such risks and uncertainties include, among other
things:
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volatile margins in the refining industry;
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exposure to the risks associated with volatile crude prices;
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the availability of adequate cash and other sources of liquidity
for our capital needs;
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disruption of our ability to obtain an adequate supply of crude
oil;
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losses due to the Cash Flow Swap;
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decreases in the light/heavy
and/or the
sweet/sour crude oil price spreads;
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losses, damages and lawsuits related to the flood and crude oil
discharge that occurred in June/July 2007;
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the failure of our new and redesigned equipment in our
facilities to perform according to expectations;
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interruption of the pipelines supplying feedstock and in the
distribution of our products;
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competition in the petroleum and nitrogen fertilizer businesses;
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capital expenditures required by environmental laws and
regulations;
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changes in our credit profile;
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the potential decline in the price of natural gas, which
historically has correlated with the market price for nitrogen
fertilizer products;
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the cyclical nature of the nitrogen fertilizer business;
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adverse weather conditions, including potential floods and other
natural disasters;
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the supply and price levels of essential raw materials;
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the volatile nature of ammonia, potential liability for
accidents involving ammonia that cause severe damage to property
and/or
injury to the environment and human health and potential
increased costs relating to transport of ammonia;
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the dependence of the nitrogen fertilizer operations on a few
third-party suppliers;
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the reliance of the nitrogen fertilizer business on third-party
providers of transportation services and equipment;
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environmental laws and regulations affecting the end-use and
application of fertilizers;
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a decrease in ethanol production;
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the potential loss of the nitrogen fertilizer business
transportation cost advantage over its competitors;
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refinery operating hazards and interruptions, including
unscheduled maintenance or downtime, and the availability of
adequate insurance coverage;
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our commodity derivative activities;
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uncertainty regarding our ability to recover costs and losses
resulting from the flood and crude oil discharge;
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our dependence on significant customers;
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our potential inability to successfully implement our business
strategies, including the completion of significant capital
programs;
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the success of our acquisition and expansion strategies;
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the dependence on our subsidiaries for cash to meet our debt
obligations;
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our significant indebtedness;
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whether we will be able to amend our credit facility on
acceptable terms if the Partnership seeks to consummate a public
or private offering;
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the potential loss of key personnel;
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labor disputes and adverse employee relations;
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risks relating to evaluations of internal controls required by
Section 404 of the Sarbanes-Oxley Act of 2002, as amended;
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the operation of our company as a controlled company;
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new regulations concerning the transportation of hazardous
chemicals, risks of terrorism and the security of chemical
manufacturing facilities;
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successfully defending against third-party claims of
intellectual property infringement;
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our ability to continue to license the technology used in our
operations;
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the possibility that Partnership distributions to us will
decrease if the Partnership issues additional equity interests
and that our rights to receive distributions will be
subordinated to the rights of third party investors;
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the possibility that we will be required to deconsolidate the
Partnership from our financial statements in the future;
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the Partnerships preferential right to pursue certain
business opportunities before we pursue them;
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reduction of our voting power in the Partnership if the
Partnership completes a public offering or private placement;
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whether we will be required to purchase the managing general
partner interest in the Partnership, and whether we will have
the requisite funds to do so;
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the possibility that we will be required to sell a portion of
our interests in the Partnership in the Partnerships
initial offering at an undesirable time or price;
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the ability of the Partnership to manage the nitrogen fertilizer
business in a manner adverse to our interests;
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the conflicts of interest faced by our senior management, which
operates both our company and the Partnership, and our
controlling stockholders, who control our company and the
managing general partner of the Partnership;
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limitations on the fiduciary duties owed by the managing general
partner of the Partnership, which are included in the
partnership agreement of the Partnership;
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whether we are ever deemed to be an investment company under the
1940 Act or will need to take actions to sell interests in the
Partnership or buy assets to refrain from being deemed an
investment company; and
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transfer of control of the managing general partner of the
Partnership to a third party that may have no economic interest
in us.
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You should not place undue reliance on our forward-looking
statements. Although forward-looking statements reflect our good
faith beliefs at the time made, reliance should not be placed on
forward-looking statements because they involve known and
unknown risks, uncertainties and other factors, which may cause
our actual results, performance or achievements to differ
materially from anticipated future results, performance or
achievements expressed or implied by such forward-looking
statements. We undertake no obligation to publicly update or
revise any forward-looking statement, whether as a result of new
information, future events, changed circumstances or otherwise.
This list of factors is illustrative, but by no means
exhaustive. Accordingly, all forward-looking statements should
be evaluated with the understanding of their inherent
uncertainty. You are advised to consult any further disclosures
we make on related subjects in the reports we file with the SEC
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act.
5
USE OF
PROCEEDS
We will disclose the use of proceeds from any offering of
securities by the Company in a prospectus supplement. We will
not receive any proceeds from the sale of shares of our common
stock by the selling stockholders identified in this prospectus,
their pledgees, donees, transferees or other successors in
interest. The selling stockholders will receive all of the net
proceeds from the sale of their shares of our common stock. See
Selling Stockholders.
6
RATIO OF EARNINGS
TO FIXED CHARGES
The following table presents our historical ratio of earnings to
fixed charges for the nine months ended September 30, 2008
and for each accounting period during the five year period ended
December 31, 2007. We have not presented a ratio of
earnings to combined fixed charges and preferred stock dividends
because we did not have preferred stock outstanding during any
such period. Therefore, our ratio of earnings to combined fixed
charges and preferred stock dividends for any given period is
equivalent to our ratio of earnings to fixed charges.
For purposes of this table, earnings consist of pre-tax income
(loss) from continuing operations before adjustments for
minority interest in consolidated subsidiary, plus fixed charges
(excluding capitalized interest, but including amortization of
amounts previously capitalized). Fixed charges consist of
interest (including capitalized interest) on all debt,
amortization of debt expenses incurred on issuance, loss or
extinguishment of debt and an estimate of the interest within
rental expense.
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Original Predecessor
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Immediate Predecessor
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Successor
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Year
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62 Days
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304 Days
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174 Days
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233 Days
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Year
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Year
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Nine Months
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Ended
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Ended
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Ended
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Ended
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Ended
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Ended
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Ended
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Ended
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December 31,
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March 2,
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December 31,
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June 23,
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December 31,
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December 31,
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December 31,
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September 30,
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2003
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2004
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2004
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2005
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2005
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2006
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2007
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2008
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(unaudited)
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Ratio of Earnings to Fixed Charges(1)
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12.1x
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57.0x
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5.6x
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6.3x
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4.7x
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7.2x
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(1) |
Earnings were insufficient to cover fixed charges by
$183.0 million and $167.8 million for the
233 days ended December 31, 2005 and the year ended
December 31, 2007, respectively.
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7
SELLING
STOCKHOLDERS
The Registration Statement of which this prospectus forms a part
has been filed pursuant to registration rights granted to the
selling stockholders in connection with our initial public
offering in order to permit the selling stockholders to resell
to the public shares of our common stock, as well as any common
stock that we may issue or may be issuable by reason of any
stock split, stock dividend or similar transaction involving
these shares. Under the terms of the registration rights
agreements between us and the selling stockholders named herein,
we will pay all expenses of the registration of their shares of
our common stock, including SEC filings fees, except that the
selling stockholders will pay all underwriting discounts and
selling commissions, if any.
The table below sets forth certain information known to us,
based upon written representations from the selling
stockholders, with respect to the beneficial ownership of the
shares of our common stock held by the selling stockholders as
of February 9, 2009. Because the selling stockholders may
sell, transfer or otherwise dispose of all, some or none of the
shares of our common stock covered by this prospectus, we cannot
determine the number of such shares that will be sold,
transferred or otherwise disposed of by the selling
stockholders, or the amount or percentage of shares of our
common stock that will be held by the selling stockholders upon
termination of any particular offering. See Plan of
Distribution. For the purposes of the table below, we
assume that the selling stockholders will sell all of their
shares of our common stock covered by this prospectus. When we
refer to the selling stockholders in this prospectus, we mean
the individuals and entities listed in the table below, as well
as their pledgees, donees, assignees, transferees, and
successors in interest.
Based on information provided to us, none of the selling
stockholders that are affiliates of broker-dealers, if any,
purchased shares of our common stock outside the ordinary course
of business or, at the time of their acquisition of shares of
our common stock, had any agreements, understandings or
arrangements with any other persons, directly or indirectly, to
dispose of the shares.
In the table below, the percentage of shares beneficially owned
is based on 86,322,411 shares of our common stock
outstanding as of the date of this prospectus (which includes
78,666 restricted shares). Beneficial ownership is determined
under the rules of the SEC and generally includes voting or
investment power with respect to securities. Unless indicated
below, to our knowledge, the persons and entities named in the
table have sole voting and sole investment power with respect to
all shares beneficially owned, subject to community property
laws where applicable. Shares of our common stock subject to
options that are currently exercisable or exercisable within
60 days of the date of this prospectus are deemed to be
outstanding and to be beneficially owned by the person holding
such options for the purpose of computing the percentage
ownership of that person but are not treated as outstanding for
the purpose of computing the percentage ownership of any other
person. Except as otherwise indicated, the business address for
each of our beneficial owners is
c/o CVR
Energy, Inc., 2277 Plaza Drive, Suite 500, Sugar Land,
Texas 77479.
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Shares Beneficially
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Shares Beneficially
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Owned
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Number of
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Owned
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Beneficial Owner
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Prior to the Offering
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Shares
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After the Offering
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Name and Address
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Number
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Percent
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Offered
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Number
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Percent
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Coffeyville Acquisition LLC(1)
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31,433,360
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36.4
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%
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7,376,265
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24,057,095
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27.9
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%
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Kelso Investment Associates VII, L.P.(1)
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31,433,360
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36.4
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%
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7,376,265
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24,057,095
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27.9
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%
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KEP VI, LLC(1)
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31,433,360
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36.4
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%
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7,376,265
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24,057,095
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27.9
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%
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320 Park Avenue, 24th Floor
New York, New York 10022
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Coffeyville Acquisition II LLC(2)
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31,433,360
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36.4
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%
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7,376,264
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24,057,096
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27.9
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%
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The Goldman Sachs Group, Inc.(2)
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31,433,560
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36.4
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%
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7,376,264
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24,057,296
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27.9
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%
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85 Broad Street
New York, New York 10004
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8
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Shares Beneficially
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Shares Beneficially
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Owned
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Number of
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Owned
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Beneficial Owner
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Prior to the Offering
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Shares
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After the Offering
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Name and Address
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Number
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Percent
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Offered
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Number
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Percent
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John J. Lipinski(3)
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247,471
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*
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247,471
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Scott L. Lebovitz(2)
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31,433,560
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36.4
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%
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7,376,264
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24,057,296
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27.9
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%
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George E. Matelich(1)
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31,433,360
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36.4
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%
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7,376,265
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24,057,095
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27.9
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%
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Stanley de J. Osborne(1)
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31,433,360
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36.4
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%
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7,376,265
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24,057,095
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27.9
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%
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Kenneth A. Pontarelli(2)
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31,433,560
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36.4
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%
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7,376,264
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24,057,296
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27.9
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%
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* |
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Less than 1%. |
|
(1) |
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Coffeyville Acquisition LLC directly owns 31,433,360 shares
of common stock. Kelso Investment Associates VII, L.P.
(KIA VII), a Delaware limited partnership, owns a
number of common units in Coffeyville Acquisition LLC that
corresponds to 24,557,883 shares of common stock, of which
up to 5,762,841 may be deemed to be offered for sale pursuant to
this prospectus, with 18,795,042 shares of common stock
deemed to be beneficially owned after the offering assuming all
shares being offered hereby are sold and KEP VI, LLC (KEP
VI and together with KIA VII, the Kelso
Funds), a Delaware limited liability company, owns a
number of common units in Coffeyville Acquisition LLC that
corresponds to 6,081,000 shares of common stock, of which
up to 1,426,989 may be deemed to be offered for sale pursuant to
this prospectus, with 4,654,011 shares of common stock
deemed to be beneficially owned after the offering assuming all
shares being offered hereby are sold. The Kelso Funds may be
deemed to beneficially own indirectly, in the aggregate, all of
the common stock of the Company owned by Coffeyville Acquisition
LLC because the Kelso Funds control Coffeyville Acquisition LLC
and have the power to vote or dispose of the common stock of the
Company owned by Coffeyville Acquisition LLC. KIA VII and KEP
VI, due to their common control, could be deemed to beneficially
own each of the others shares but each disclaims such
beneficial ownership. Messrs. Nickell, Wall, Matelich,
Goldberg, Bynum, Wahrhaftig, Berney, Loverro, Connors, Osborne
and Moore may be deemed to share beneficial ownership of shares
of common stock owned of record or beneficially owned by KIA
VII, KEP VI and Coffeyville Acquisition LLC by virtue of their
status as managing members of KEP VI and of Kelso GP VII, LLC, a
Delaware limited liability company, the principal business of
which is serving as the general partner of Kelso GP VII, L.P., a
Delaware limited partnership, the principal business of which is
serving as the general partner of KIA VII. Each of
Messrs. Nickell, Wall, Matelich, Goldberg, Bynum,
Wahrhaftig, Berney, Loverro, Connors, Osborne and Moore share
investment and voting power with respect to the ownership
interests owned by KIA VII, KEP VI and Coffeyville Acquisition
LLC but disclaim beneficial ownership of such interests. |
|
(2) |
|
Coffeyville Acquisition II LLC directly owns
31,433,360 shares of common stock. GS Capital Partners V
Fund, L.P., GS Capital Partners V Offshore Fund, L.P., GS
Capital Partners V GmbH & Co. KG and GS Capital
Partners V Institutional, L.P. (collectively, the Goldman
Sachs Funds) are members of Coffeyville
Acquisition II LLC and own common units of Coffeyville
Acquisition II LLC. The Goldman Sachs Funds common
units in Coffeyville Acquisition II LLC correspond to
31,125,918 shares of common stock. The Goldman Sachs Group,
Inc. and Goldman, Sachs & Co. may be deemed to
beneficially own indirectly, in the aggregate, all of the common
stock owned by Coffeyville Acquisition II LLC through the
Goldman Sachs Funds because (i) affiliates of Goldman,
Sachs & Co. and The Goldman Sachs Group, Inc. are the
general partner, managing general partner, managing partner,
managing member or member of the Goldman Sachs Funds and
(ii) the Goldman Sachs Funds control Coffeyville
Acquisition II LLC and have the power to vote or dispose of
the common stock of the Company owned by Coffeyville
Acquisition II LLC. Goldman, Sachs & Co. is a
direct and indirect wholly owned subsidiary of The Goldman Sachs
Group, Inc. Goldman, Sachs & Co. is the investment
manager of certain of the Goldman Sachs Funds. Shares that may
be deemed to be beneficially owned by the Goldman Sachs Funds
consist of: |
9
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(1) 16,389,665 shares of common stock that may be
deemed to be beneficially owned by GS Capital Partners V Fund,
L.P. and its general partner, GSCP V Advisors, L.L.C., of which
up to 3,846,057 may be deemed to be offered for sale pursuant to
this prospectus, with 12,543,608 shares of common stock
deemed to be beneficially owned after the offering assuming all
shares being offered hereby are sold,
(2) 8,466,218 shares of common stock that may be
deemed to be beneficially owned by GS Capital Partners V
Offshore Fund, L.P. and its general partner, GSCP V Offshore
Advisors, L.L.C., of which up to 1,986,713 may be deemed to be
offered for sale pursuant to this prospectus, with 6,479,505
deemed to be beneficially owned after the offering assuming all
shares being offered hereby are sold,
(3) 5,620,242 shares of common stock that may be
deemed to be beneficially owned by GS Capital Partners V
Institutional, L.P. and its general partner, GSCP V Advisors,
L.L.C., of which up to 1,318,866 may be deemed to be offered for
sale pursuant to this prospectus, with 4,301,376 deemed to be
beneficially owned after the offering assuming all shares being
offered hereby are sold, and (4) 649,793 shares of
common stock that may be deemed to be beneficially owned by GS
Capital Partners V GmbH & Co. KG and its general
partner, Goldman, Sachs Management GP GmbH, of which up to
152,483 may be deemed to be offered for sale pursuant to this
prospectus, with 497,310 deemed to be beneficially owned after
the offering assuming all shares being offered hereby are sold.
In addition, Goldman, Sachs & Co. directly owns
200 shares of common stock. The Goldman Sachs Group, Inc.
may be deemed to beneficially own indirectly the 200 shares
of common stock owned by Goldman, Sachs & Co. In
addition, the Goldman Sachs Funds may be deemed to beneficially
own the 31,433,360 shares of common stock owned by
Coffeyville Acquisition II LLC, and The Goldman Sachs
Group, Inc. and Goldman, Sachs & Co. may be deemed to
beneficially own indirectly, in the aggregate, all of the common
stock owned by Coffeyville Acquisition II LLC through the
Goldman Sachs Funds. Kenneth A. Pontarelli is a partner managing
director of Goldman, Sachs & Co. and Scott L. Lebovitz
is a managing director of Goldman, Sachs & Co.
Mr. Pontarelli, Mr. Lebovitz, The Goldman Sachs Group,
Inc. and Goldman, Sachs & Co. each disclaims
beneficial ownership of the shares of common stock owned
directly or indirectly by the Goldman Sachs Funds, except to the
extent of their pecuniary interest therein, if any. |
|
(3) |
|
Mr. Lipinski owns 247,471 shares of common stock
directly. In addition, Mr. Lipinski owns
158,285 shares indirectly through his ownership of common
units in Coffeyville Acquisition LLC and Coffeyville
Acquisition II LLC. Mr. Lipinski does not have the
power to vote or dispose of shares that correspond to his
ownership of common units in Coffeyville Acquisition LLC and
Coffeyville Acquisition II LLC and thus does not have
beneficial ownership of such shares. |
10
GENERAL
DESCRIPTION OF SECURITIES THAT WE AND
THE SELLING STOCKHOLDERS MAY SELL
We may offer and sell, from time to time:
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shares of our common stock, par value $0.01 per share;
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|
shares of our preferred stock, par value $0.01 per share;
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debt securities, in one or more series, which may be senior debt
securities, senior subordinated debt securities or
subordinated debt securities;
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|
warrants to purchase any of the other securities that may be
sold under this prospectus;
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|
subscription rights to purchase any of the other securities that
may be sold under this prospectus;
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|
any combination of these securities.
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The terms of any securities we offer will be determined at the
time of sale. We may issue preferred stock or debt securities
that are exchangeable for or convertible into common stock or
any of the other securities that may be sold under this
prospectus. When particular securities are offered, a supplement
to this prospectus will be filed with the SEC, which will
describe the terms of the offering and sale of the offered
securities.
In addition, the selling stockholders named in this prospectus
may offer for resale, from time to time, up to
15,000,000 shares of our common stock.
11
DESCRIPTION OF
CAPITAL STOCK
Our authorized capital stock consists of 350,000,000 shares
of common stock, par value $0.01 per share, and
50,000,000 shares of preferred stock, par value $0.01 per
share, the rights and preferences of which may be established
from time to time by our board of directors. As of the date of
this prospectus, there are 86,243,745 outstanding shares of
common stock and no outstanding shares of preferred stock. The
following description of our capital stock does not purport to
be complete and is subject to and qualified by our amended and
restated certificate of incorporation and amended and restated
bylaws, which are included as exhibits to the registration
statement of which this prospectus forms a part, and by the
provisions of applicable Delaware law.
Common
Stock
Holders of our common stock are entitled to one vote for each
share on all matters voted upon by our stockholders, including
the election of directors, and do not have cumulative voting
rights. Subject to the rights of holders of any then outstanding
shares of our preferred stock, our common stockholders are
entitled to any dividends that may be declared by our board of
directors. Holders of our common stock are entitled to share
ratably in our net assets upon our dissolution or liquidation
after payment or provision for all liabilities and any
preferential liquidation rights of our preferred stock then
outstanding. Holders of our common stock have no preemptive
rights to purchase shares of our capital stock. The shares of
our common stock are not subject to any redemption provisions
and are not convertible into any other shares of our capital
stock. All outstanding shares of our common stock are fully paid
and nonassessable. The rights, preferences and privileges of
holders of our common stock will be subject to those of the
holders of any shares of our preferred stock we may issue in the
future.
Our common stock will be represented by certificates, unless our
board of directors adopts a resolution providing that some or
all of our common stock shall be uncertificated. Any such
resolution will not apply to any shares of common stock that are
already certificated until such shares are surrendered to us.
Preferred
Stock
Our board of directors may, from time to time, authorize the
issuance of one or more series of preferred stock without
stockholder approval. Subject to the provisions of our amended
and restated certificate of incorporation and limitations
prescribed by law, our board of directors is authorized from
time to time to adopt resolutions to issue one or more series of
preferred stock, designate the series, establish the number of
shares constituting any series, change the number of shares
constituting any series, and provide or change the voting
powers, preferences and relative participating, optional and
other special rights, and any qualifications, limitations or
restrictions on shares of our preferred stock, including
dividend rights, terms of redemption, conversion rights and
liquidation preferences, in each case without any action or vote
by our stockholders.
One of the effects of undesignated preferred stock may be to
enable our board of directors to discourage an attempt to obtain
control of our company by means of a tender offer, proxy
contest, merger or otherwise. The issuance of preferred stock
may adversely affect the rights of our common stockholders by,
among other things:
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restricting dividends on the common stock;
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|
diluting the voting power of the common stock;
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|
decreasing the market price of the common stock;
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|
impairing the liquidation rights of the common stock; or
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|
delaying or preventing a change in control without further
action by the stockholders.
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12
Limitation on
Liability and Indemnification of Officers and
Directors
Our amended and restated certificate of incorporation limits the
liability of directors to the fullest extent permitted by
Delaware law. The effect of these provisions is to eliminate the
rights of our company and our stockholders, through
stockholders derivative suits on behalf of our company, to
recover monetary damages against a director for breach of
fiduciary duty as a director, including breaches resulting from
grossly negligent behavior. However, our directors will be
personally liable to us and our stockholders for any breach of
the directors duty of loyalty, for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, under Section 174 of the Delaware
General Corporation Law or for any transaction from which the
director derived an improper personal benefit. In addition, our
amended and restated certificate of incorporation and amended
and restated bylaws provide that we will indemnify our directors
and officers to the fullest extent permitted by Delaware law.
Our board of directors has approved a form of indemnification
agreement for our directors and officers, and expects that each
of its current and future directors and officers will enter into
substantially similar indemnification agreements. We also
maintain directors and officers insurance.
Corporate
Opportunities
Our amended and restated certificate of incorporation provides
that the Goldman Sachs Funds and the Kelso Funds have no
obligation to offer us an opportunity to participate in business
opportunities presented to the Goldman Sachs Funds or the Kelso
Funds or their respective affiliates even if the opportunity is
one that we might reasonably have pursued, and that neither the
Goldman Sachs Funds or the Kelso Funds nor their respective
affiliates will be liable to us or our stockholders for breach
of any duty by reason of any such activities unless, in the case
of any person who is a director or officer of our company, such
business opportunity is expressly offered to such director or
officer in writing solely in his or her capacity as an officer
or director of our company. Stockholders will be deemed to have
notice of and consented to this provision of our certificate of
incorporation.
In addition, the Partnerships partnership agreement
provides that the owners of the managing general partner of the
Partnership, which include the Goldman Sachs Funds and the Kelso
Funds, are permitted to engage in separate businesses which
directly compete with the Partnership and are not required to
share or communicate or offer any potential corporate
opportunities to the Partnership even if the opportunity is one
that the Partnership might reasonably have pursued. The
agreement provides that the owners of the managing general
partner will not be liable to the Partnership or any partner for
breach of any fiduciary or other duty by reason of the fact that
such person pursued or acquired for itself any corporate
opportunity.
Delaware
Anti-Takeover Law
Our amended and restated certificate of incorporation provides
that we are not subject to Section 203 of the Delaware
General Corporation Law which regulates corporate acquisitions.
This law provides that specified persons who, together with
affiliates and associates, own, or within three years did own,
15% or more of the outstanding voting stock of a corporation may
not engage in business combinations with the corporation for a
period of three years after the date on which the person became
an interested stockholder. The law defines the term
business combination to include mergers, asset sales
and other transactions in which the interested stockholder
receives or could receive a financial benefit on other than a
pro rata basis with other stockholders.
Removal of
Directors; Vacancies
Our amended and restated certificate of incorporation and
amended and restated bylaws provide that any director or the
entire board of directors may be removed with or without cause
by the affirmative vote of the majority of all shares then
entitled to vote at an election of directors. Our amended and
restated certificate of incorporation and amended and restated
bylaws also provide that any vacancies on our board of directors
will be filled by the affirmative vote of a majority of the
board of directors then in office, even if less than a quorum,
or by a sole remaining director.
13
Voting
The affirmative vote of a plurality of the shares of our common
stock present, in person or by proxy will decide the election of
any directors, and the affirmative vote of a majority of the
shares of our common stock present, in person or by proxy will
decide all other matters voted on by stockholders, unless the
question is one upon which, by express provision of law, under
our amended and restated certificate of incorporation, or under
our amended and restated bylaws, a different vote is required,
in which case such provision will control.
Action by Written
Consent
Our amended and restated certificate of incorporation and
amended and restated bylaws provide that stockholder action can
be taken by written consent of the stockholders only if the
Goldman Sachs Funds and the Kelso Funds collectively
beneficially own more than 35.0% of the outstanding shares of
our common stock.
Ability to Call
Special Meetings
Our amended and restated bylaws provide that special meetings of
our stockholders can only be called pursuant to a resolution
adopted by a majority of our board of directors or by the
chairman of our board of directors. Special meetings may also be
called by the holders of not less than 25% of the outstanding
shares of our common stock if the Goldman Sachs Funds and the
Kelso Funds collectively beneficially own 50% or more of the
outstanding shares of our common stock. Thereafter, stockholders
will not be permitted to call a special meeting or to require
our board to call a special meeting.
Amending Our
Certificate of Incorporation and Bylaws
Our amended and restated certificate of incorporation provides
that our certificate of incorporation may be amended by the
affirmative vote of a majority of the board of directors and by
the affirmative vote of the majority of all shares of our common
stock then entitled to vote at any annual or special meeting of
stockholders. In addition, our amended and restated certificate
of incorporation and amended and restated bylaws provide that
our bylaws may be amended, repealed or new bylaws may be adopted
by the affirmative vote of a majority of the board of directors
or by the affirmative vote of the majority of all shares of our
common stock then entitled to vote at any annual or special
meeting of stockholders.
Advance Notice
Provisions for Stockholders
In order to nominate directors to our board of directors or
bring other business before an annual meeting of our
stockholders, a stockholders notice must be received by
the Secretary of the Company at the principal executive offices
of the Company not less than 120 calendar days before the date
that our proxy statement is released to stockholders in
connection with the previous years annual meeting of
stockholders, subject to certain exceptions contained in our
amended and restated bylaws. If no annual meeting was held in
the previous year, or if the date of the applicable annual
meeting has been changed by more than 30 days from the date
of the previous years annual meeting, then a
stockholders notice, in order to be considered timely,
must be received by the Secretary of the Company no later than
the later of the 90th day prior to such annual meeting or
the tenth day following the day on which notice of the date of
the annual meeting was mailed or public disclosure of such date
was made.
Listing
Our common stock is listed on the New York Stock Exchange under
the symbol CVI.
Transfer Agent
and Registrar
The transfer agent and registrar for our common stock is
American Stock Transfer & Trust Company.
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DESCRIPTION OF
DEBT SECURITIES
General
The following descriptions of the debt securities do not purport
to be complete and are subject to and qualified in their
entirety by reference to the indentures, forms of which have
been filed with the SEC as exhibits to the registration
statement of which this prospectus is a part. Any future
supplemental indenture or similar document also will be so
filed. You should read the indentures and any supplemental
indenture or similar document because they, and not this
description, define your rights as holder of our debt
securities. All capitalized terms have the meanings specified in
the indentures.
The debt securities offered by this prospectus will be issued
under one of two separate indentures between us and Wells Fargo
Bank, N.A., as Trustee. The senior note indenture and the
subordinated note indenture are sometimes referred to in this
prospectus individually as an indenture and
collectively as the indentures. The debt securities
will be obligations of the Company and will be either senior,
senior subordinated or subordinated debt. We have summarized
selected provisions of the indentures and the debt securities
below.
We may issue debt securities from time to time in one or more
series under the indentures. The indentures give us the ability
to reopen a previous issue of a series of debt securities and
issue additional debt securities of the same series. We will
describe the particular terms of each series of debt securities
we offer in a supplement to this prospectus. If any particular
terms of the debt securities described in a prospectus
supplement differ from any of the terms described in this
prospectus, then the terms described in the applicable
prospectus supplement will supersede the terms described in this
prospectus. The terms of our debt securities will include those
set forth in the indentures and those made a part of the
indentures by the Trust Indenture Act of 1939. You should
carefully read the summary below, the applicable prospectus
supplement and the provisions of the indentures that may be
important to you before investing in our debt securities.
General Terms of
the Indentures
The indentures do not limit the amount of debt securities that
we may issue. They provide that we may issue debt securities up
to the principal amount that we may authorize and may be in any
currency or currency unit designated by us. Except for the
limitations on consolidation, merger and sale of all or
substantially all of our assets contained in the indentures, the
terms of the indentures do not contain any covenants or other
provisions designed to afford holders of any debt securities
protection with respect to our operations, financial condition
or transactions involving us.
We may issue the debt securities issued under the indentures as
discount securities, which means they may be sold at
a discount below their stated principal amount. These debt
securities, as well as other debt securities that are not issued
at a discount, may, for U.S. federal income tax purposes,
be treated as if they were issued with original issue
discount, or OID, because of interest payment
and other characteristics. Special U.S. federal income tax
considerations applicable to debt securities issued with
original issue discount will be described in more detail in any
applicable prospectus supplement.
The applicable prospectus supplement for a series of debt
securities that we issue will describe, among other things, the
following terms of the offered debt securities:
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the title;
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the aggregate principal amount;
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whether issued in fully registered form without coupons or in a
form registered as to principal only with coupons or in bearer
form with coupons;
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whether issued in the form of one or more global securities and
whether all or a portion of the principal amount of the debt
securities is represented thereby;
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the price or prices at which the debt securities will be issued;
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the date or dates on which principal is payable;
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the place or places where and the manner in which principal,
premium or interest will be payable and the place or places
where the debt securities may be presented for transfer and, if
applicable, conversion or exchange;
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interest rates, and the dates from which interest, if any, will
accrue, and the dates when interest is payable;
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the right, if any, to extend the interest payment periods and
the duration of the extensions;
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our rights or obligations to redeem or purchase the debt
securities, including sinking fund or partial redemption
payments;
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conversion or exchange provisions, if any, including conversion
or exchange prices or rates and adjustments thereto;
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the currency or currencies of payment of principal or interest;
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the terms applicable to any debt securities issued at a discount
from their stated principal amount;
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the terms, if any, pursuant to which any debt securities will be
subordinate to any of our other debt;
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if the amount of payments of principal or interest is to be
determined by reference to an index or formula, or based on a
coin or currency other than that in which the debt securities
are stated to be payable, the manner in which these amounts are
determined and the calculation agent, if any, with respect
thereto;
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if other than the entire principal amount of the debt securities
when issued, the portion of the principal amount payable upon
acceleration of maturity as a result of a default on our
obligations;
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any provisions for the remarketing of the debt securities;
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if the debt securities of the series are to be secured by any of
our assets or properties;
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if the debt securities are to be guaranteed by any other entity;
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if applicable, covenants affording holders of debt protection
with respect to our operations, financial condition or
transactions involving us; and
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any other specific terms of any debt securities.
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The applicable prospectus supplement will set forth certain
U.S. federal income tax considerations for holders of any
debt securities and the securities exchange or quotation system
on which any debt securities are listed or quoted, if any.
Debt securities issued by us will be structurally subordinated
to all indebtedness and other liabilities of each of our
subsidiaries, except with respect to a subsidiary that
guarantees the debt securities.
Unless otherwise provided in the applicable prospectus
supplement, all securities of any one series need not be issued
at the same time and may be issued from time to time without
consent of any holder.
Senior Debt
Securities
Payment of the principal of, premium, if any, and interest on
Senior Debt Securities will rank on a parity with all of our
other unsubordinated debt.
Subordinated Debt
Securities
Payment of the principal of, premium, if any, and interest on
Subordinated Debt Securities will be junior in right of payment
to the prior payment in full of all of our unsubordinated debt.
Subordinated Debt Securities may be either subordinated debt
(subordinated to all of our other debt) or senior subordinated
debt (senior to other subordinated debt but junior to senior
debt). We will set forth in the applicable prospectus supplement
relating to any Subordinated Debt Securities the subordination
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terms of such securities as well as the aggregate amount of
outstanding debt, as of the most recent practicable date, that
by its terms would be senior to the Subordinated Debt
Securities. We will also set forth in such prospectus supplement
limitations, if any, on issuance of additional senior debt.
Conversion or
Exchange Rights
Debt securities may be convertible into or exchangeable for our
other securities or property. The terms and conditions of
conversion or exchange will be set forth in the applicable
prospectus supplement. The terms will include, among others, the
following:
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the conversion or exchange price;
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the conversion or exchange period;
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provisions regarding the ability of us or the holder to convert
or exchange the debt securities;
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events requiring adjustment to the conversion or exchange
price; and
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provisions affecting conversion or exchange in the event of our
redemption of the debt securities.
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Consolidation,
Merger or Sale
We cannot consolidate or merge with or into, or transfer or
lease all or substantially all of our assets to, any person
unless (a) we will be the continuing corporation or
(b) the successor or person to which our assets are
transferred or leased is a corporation, limited liability
company, partnership or other entity organized under the laws of
the United States, any state of the United States or the
District of Columbia and it expressly assumes our obligations on
the debt securities and under the indentures. In addition, we
cannot effect such a transaction unless immediately after giving
effect to such transaction, no default or event of default under
the indentures shall have occurred and be continuing. Subject to
certain exceptions, when the person to whom our assets are
transferred or leased has assumed our obligations under the debt
securities and the indentures, we shall be discharged from all
our obligations under the debt securities and the indentures,
except in limited circumstances.
This covenant would not apply to any recapitalization
transaction, a change of control of us or a highly leveraged
transaction, unless the transaction or change of control were
structured to include a merger or consolidation or transfer or
lease of all or substantially all of our assets.
Events of
Default
Unless otherwise indicated, the term Event of
Default, when used in the indentures, means any of the
following:
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failure to pay interest for 30 days after the date payment
is due and payable; provided that an extension of an interest
payment period in accordance with the terms of the debt
securities shall not constitute a failure to pay interest;
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failure to pay principal or premium, if any, on any debt
security when due, either at maturity, upon any redemption, by
declaration or otherwise;
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failure to make sinking fund payments when due;
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failure to perform any other covenant for 90 days after
notice that performance was required;
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events in bankruptcy, insolvency or reorganization; or
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any other Event of Default provided in the applicable resolution
of our board of directors or the officers certificate or
supplemental indenture under which we issue series of debt
securities.
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An Event of Default for a particular series of debt securities
does not necessarily constitute an Event of Default for any
other series of debt securities issued under the indentures. If
an Event of Default (other than an Event of Default relating to
events in bankruptcy, insolvency or reorganization) involving
any series of debt securities has occurred and is continuing,
the trustee or the holders of not
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less than 25% in aggregate principal amount of the debt
securities of each affected series may declare the entire
principal of all the debt securities of that series to be due
and payable immediately.
The holders of not less than a majority in aggregate principal
amount of the debt securities of a series may, after satisfying
conditions, rescind and annul the above-described declaration
and consequences involving the series.
If an Event of Default relating to events in bankruptcy,
insolvency or reorganization occurs and is continuing, then the
principal amount of all of the debt securities outstanding, and
any accrued interest, will automatically become due and payable
immediately, without any declaration or other act by the trustee
or any holder.
The indentures impose limitations on suits brought by holders of
debt securities against us. Except as provided below, no holder
of debt securities of any series may institute any action
against us under the indentures unless:
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the holder has previously given to the trustee written notice of
default and continuance of that default;
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the holders of at least 25% in principal amount of the
outstanding debt securities of the affected series have
requested that the trustee institute the action;
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the requesting holders have offered the trustee security or
indemnity reasonably satisfactory to it for expenses and
liabilities that may be incurred by bringing the action;
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the trustee has not instituted the action within 60 days of
the request; and
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the trustee has not received inconsistent direction by the
holders of a majority in principal amount of the outstanding
debt securities of the series.
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Notwithstanding the foregoing, each holder of debt securities of
any series has the right, which is absolute and unconditional,
to receive payment of the principal of and premium and interest,
if any, on such debt securities when due and to institute suit
for the enforcement of any such payment, and such rights may not
be impaired without the consent of that holder of debt
securities.
We will be required to file annually with the trustee a
certificate, signed by one of our officers, stating whether or
not the officer knows of any default by us in the performance,
observance or fulfillment of any condition or covenant of the
indentures.
Registered Global
Securities
We may issue the debt securities of a series in whole or in part
in the form of one or more fully registered global securities
that we will deposit with a depositary or with a nominee for a
depositary identified in the applicable prospectus supplement
and registered in the name of such depositary or nominee. In
such case, we will issue one or more registered global
securities denominated in an amount equal to the aggregate
principal amount of all of the debt securities of the series to
be issued and represented by such registered global security or
securities.
Unless and until it is exchanged in whole or in part for debt
securities in definitive registered form, a registered global
security may not be transferred except as a whole:
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by the depositary for such registered global security to its
nominee; or
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by a nominee of the depositary to the depositary or another
nominee of the depositary; or
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by the depositary or its nominee to a successor of the
depositary or a nominee of the successor.
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The prospectus supplement relating to a series of debt
securities will describe the specific terms of the depositary
arrangement with respect to any portion of such series
represented by a registered
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global security. We anticipate that the following provisions
will apply to all depositary arrangements for debt securities:
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ownership of beneficial interests in a registered global
security will be limited to persons that have accounts with the
depositary for the registered global security, those persons
being referred to as participants, or persons that
may hold interests through participants;
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upon the issuance of a registered global security, the
depositary for the registered global security will credit, on
its book-entry registration and transfer system, the
participants accounts with the respective principal
amounts of the debt securities represented by the registered
global security beneficially owned by the participants;
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any dealers, underwriters, or agents participating in the
distribution of the debt securities will designate the accounts
to be credited; and
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ownership of any beneficial interest in the registered global
security will be shown on, and the transfer of any ownership
interest will be effected only through, records maintained by
the depositary for the registered global security (with respect
to interests of participants) and on the records of participants
(with respect to interests of persons holding through
participants).
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The laws of some states may require that certain purchasers of
securities take physical delivery of the securities in
definitive form. These laws may limit the ability of those
persons to own, transfer or pledge beneficial interests in
registered global securities.
So long as the depositary for a registered global security, or
its nominee, is the registered owner of the registered 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 registered global security for all
purposes under the indentures. Except as set forth below, owners
of beneficial interests in a registered global security:
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will not be entitled to have the debt securities represented by
a registered global security registered in their names;
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will not receive or be entitled to receive physical delivery of
the debt securities in the definitive form; and
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will not be considered the owners or holders of the debt
securities under the indentures.
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Accordingly, each person owning a beneficial interest in a
registered global security must rely on the procedures of the
depositary for the registered global security and, if the person
is not a participant, on the procedures of a participant through
which the person owns its interest, to exercise any rights of a
holder under the indentures.
We understand that under existing industry practices, if we
request any action of holders or if an owner of a beneficial
interest in a registered global security desires to give or take
any action that a holder is entitled to give or take under the
indentures, the depositary for the registered global security
would authorize the participants holding the relevant beneficial
interests to give or take the action, and those participants
would authorize beneficial owners owning through those
participants to give or take the action or would otherwise act
upon the instructions of beneficial owners holding through them.
We will make payments of principal and premium, if any, and
interest, if any, on debt securities represented by a registered
global security registered in the name of a depositary or its
nominee to the depositary or its nominee, as the case may be, as
the registered owners of the registered global security. None of
CVR Energy, the trustee or any other agent of CVR Energy or the
trustee will be responsible or liable for any aspect of the
records relating to, or payments made on account of, beneficial
ownership interests in the registered global security or for
maintaining, supervising or reviewing any records relating to
the beneficial ownership interests.
We expect that the depositary for any debt securities
represented by a registered global security, upon receipt of any
payments of principal and premium, if any, and interest, if any,
in respect of the registered global security, will immediately
credit participants accounts with payments in amounts
proportionate to their respective beneficial interests in the
registered global security as shown on the
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records of the depositary. We also expect that standing customer
instructions and customary practices will govern payments by
participants to owners of beneficial interests in the registered
global security held through the participants, as is now the
case with the securities held for the accounts of customers in
bearer form or registered in street name. We also
expect that any of these payments will be the responsibility of
the participants.
If the depositary for any debt securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency
registered under the Exchange Act, we will appoint an eligible
successor depositary. If we fail to appoint an eligible
successor depositary within 90 days, we will issue the debt
securities in definitive form in exchange for the registered
global security. In addition, we may at any time and in our sole
discretion decide not to have any of the debt securities of a
series represented by one or more registered global securities.
In such event, we will issue debt securities of that series in a
definitive form in exchange for all of the registered global
securities representing the debt securities. The trustee will
register any debt securities issued in definitive form in
exchange for a registered global security in such name or names
as the depositary, based upon instructions from its
participants, shall instruct the trustee.
We may also issue bearer debt securities of a series in the form
of one or more global securities, referred to as bearer
global securities. We will deposit these bearer global
securities with a common depositary for Euroclear System and
Clearstream Bank Luxembourg, Societe Anonyme, or with a nominee
for the depositary identified in the prospectus supplement
relating to that series. The prospectus supplement relating to a
series of debt securities represented by a bearer global
security will describe the specific terms and procedures,
including the specific terms of the depositary arrangement and
any specific procedures for the issuance of debt securities in
definitive form in exchange for a bearer global security, with
respect to the portion of the series represented by a bearer
global security.
Discharge,
Defeasance and Covenant Defeasance
We can discharge or defease our obligations under the indentures
as set forth below. Unless otherwise set forth in the applicable
prospectus supplement, the subordination provisions applicable
to the Subordinated Debt Securities will be expressly made
subject to the discharge and defeasance provisions of the
indentures.
We may discharge our obligations to holders of any series of
debt securities that have not already been delivered to the
trustee for cancellation and that have either become due and
payable or are by their terms to become due and payable within
one year (or are scheduled for redemption within one year). We
may effect a discharge by irrevocably depositing with the
trustee cash or U.S. government obligations, as trust
funds, in an amount certified to be sufficient to pay when due,
whether at maturity, upon redemption or otherwise, the principal
of, premium, if any, and interest on the debt securities and any
mandatory sinking fund payments.
Unless otherwise provided in the applicable prospectus
supplement, we may also discharge any and all of our obligations
to holders of any series of debt securities at any time
(legal defeasance). We also may be released from the
obligations imposed by any covenants of any outstanding series
of debt securities and provisions of the indentures, and we may
omit to comply with those covenants without creating an Event of
Default (covenant defeasance). We may effect
defeasance and covenant defeasance only if, among other things:
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we irrevocably deposit with the trustee cash or
U.S. government obligations, as trust funds, in an amount
certified to be sufficient to pay at maturity (or upon
redemption) the principal, premium, if any, and interest on all
outstanding debt securities of the series; and
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we deliver to the trustee an opinion of counsel from a
nationally recognized law firm to the effect that the holders of
the series of debt securities will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of
the legal defeasance or covenant defeasance and that legal
defeasance or covenant defeasance will not otherwise alter the
holders U.S. federal income tax treatment of
principal, premium, if any, and interest payments on the series
of debt securities, which opinion, in the case of legal
defeasance, must be based on a ruling of the Internal Revenue
Service issued, or a change in U.S. federal income tax law.
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Although we may discharge or defease our obligations under the
indentures as described in the two preceding paragraphs, we may
not avoid, among other things, our duty to register the transfer
or exchange of any series of debt securities, to replace any
temporary, mutilated, destroyed, lost or stolen series of debt
securities or to maintain an office or agency in respect of any
series of debt securities.
Modification of
the Indentures
The indentures provide that we and the trustee may enter into
supplemental indentures without the consent of any holders of
debt securities to:
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secure any debt securities;
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evidence the assumption by a successor corporation of our
obligations;
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add covenants for the protection or benefit of the holders of
debt securities;
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cure any ambiguity or correct any inconsistency in the
indentures;
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establish the forms or terms of debt securities of any series;
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evidence and provide for the acceptance of appointment by a
successor trustee;
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comply with SEC requirements to effect or maintain the
qualification of the indentures under the Trust Indenture
Act; and
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to add one or more guarantees under the indentures or release a
guarantee pursuant to the indentures.
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The indentures also provide that we and the trustee may, with
the consent of the holders of not less than a majority in
aggregate principal amount of debt securities of any series of
Senior Debt Securities or Subordinated Debt Securities, as the
case may be, then outstanding and affected, add any provisions
to, or change in any manner, eliminate or modify in any way the
provisions of, the indentures or modify in any manner the rights
of the holders of the debt securities of that series. We and the
trustee may not, however, without the consent of the holder of
each outstanding debt security affected thereby:
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extend the final maturity of any debt security;
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reduce the principal amount or premium, if any;
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reduce the rate or extend the time of payment of interest;
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reduce any amount payable on redemption;
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change the currency in which the principal (other than as may be
provided otherwise with respect to a series), premium, if any,
or interest is payable;
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reduce the amount of the principal of any debt security issued
with an original issue discount that is payable upon
acceleration or provable in bankruptcy;
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modify any of the subordination provisions or the definition of
senior indebtedness applicable to any Subordinated Debt
Securities in a manner adverse to the holders of those
securities;
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alter provisions of the indentures relating to the debt
securities not denominated in U.S. dollars;
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impair the right to institute suit for the enforcement of any
payment on any debt security when due; or
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reduce the percentage of holders of debt securities of any
series whose consent is required for any modification of the
indentures.
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Concerning the
Trustee
The indentures provide that there may be more than one trustee
under the indentures, each with respect to one or more series of
debt securities. If there are different trustees for different
series of debt securities, each trustee will be a trustee of a
trust under the indentures separate and apart from the trust
administered by any other trustee under the indentures. Except
as otherwise indicated in this prospectus or any prospectus
supplement, any action permitted to be taken by a trustee may be
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by such trustee only with respect to the one or more series of
debt securities for which it is the trustee under the
indentures. Any trustee under the indentures may resign or be
removed with respect to one or more series of debt securities.
All payments of principal of, premium, if any, and interest on,
and all registration, transfer, exchange, authentication and
delivery (including authentication and delivery on original
issuance of the debt securities) of, the debt securities of a
series will be effected by the trustee with respect to that
series at an office designated by the trustee in New York, NY.
The indentures contains limitations on the right of the trustee,
should it become a creditor of CVR Energy, to obtain payment of
claims in some cases or to realize on certain property received
in respect of any such claim as security or otherwise. The
trustee may engage in other transactions. If it acquires any
conflicting interest relating to any duties with respect to the
debt securities, however, it must eliminate the conflict or
resign as trustee.
The holders of a majority in aggregate principal amount of any
series of debt securities then outstanding will have the right
to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the trustee
with respect to such series of debt securities, provided that
the direction would not conflict with any rule of law or with
the indentures, would not be unduly prejudicial to the rights of
another holder of the debt securities, and would not involve any
trustee in personal liability. The indentures provide that in
case an Event of Default shall occur and be known to any trustee
and not be cured, the trustee must use the same degree of care
as a prudent person would use in the conduct of his or her own
affairs in the exercise of the trustees power. Subject to
these provisions, the trustee will be under no obligation to
exercise any of its rights or powers under the indentures at the
request of any of the holders of the debt securities, unless
they shall have offered to the trustee security and indemnity
satisfactory to the trustee. The trustee shall not be required
to give any bond or surety in respect of the performance of its
powers and duties under the indentures. In no event shall the
trustee be responsible or liable for special, indirect, punitive
or consequential loss or damage of any kind whatsoever
irrespective of whether the trustee has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
No Individual
Liability of Incorporators, Stockholders, Officers or
Directors
The indentures provide that no incorporator and no past, present
or future stockholder, officer or director, of us or any
successor corporation in their capacity as such shall have any
individual liability for any of our obligations, covenants or
agreements under the debt securities or the indentures.
Governing
Law
The indentures and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York,
including, without limitation,
Sections 5-1401
and 5-1402 of the New York General Obligations Law.
22
DESCRIPTION OF
WARRANTS
General
We may issue debt warrants for the purchase of debt securities
or stock warrants for the purchase of preferred stock or common
stock.
The warrants will be issued under warrant agreements to be
entered into between us and a bank or trust company, as warrant
agent, all to be set forth in the applicable prospectus
supplement relating to any or all warrants in respect of which
this prospectus is being delivered. Copies of the form of
agreement for each warrant, including the forms of certificates
representing the warrants reflecting the provisions to be
included in such agreements that will be entered into with
respect to the particular offerings of each type of warrant,
will be filed in a document incorporated by reference into the
applicable prospectus supplement.
The following description sets forth certain general terms and
provisions of the warrants to which any prospectus supplement
may relate. The particular terms of the warrants to which any
prospectus supplement may relate and the extent, if any, to
which such general provisions may apply to the warrants so
offered will be described in the applicable prospectus
supplement. The following summary of certain provisions of the
warrants, warrant agreements and warrant certificates does not
purport to be complete and is subject to, and is qualified in
its entirety by express reference to, all the provisions of the
applicable warrant agreements and warrant certificates,
including the definitions therein of certain terms, which will
be filed with the SEC as exhibits to the applicable prospectus
supplement.
Debt
Warrants
General. Reference is made to the applicable
prospectus supplement for the terms of debt warrants in respect
of which this prospectus is being delivered, the debt securities
warrant agreement relating to such debt warrants and the debt
warrant certificates representing such debt warrants, including
the following:
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the designation, aggregate principal amount and terms of the
debt securities purchasable upon exercise of such debt warrants
and the procedures and conditions relating to the exercise of
such debt warrants;
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the designation and terms of any related debt securities with
which such debt warrants are issued and the number of such debt
warrants issued with each such debt security;
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the date, if any, on and after which such debt warrants and any
related offered securities will be separately transferable;
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the principal amount of debt securities purchasable upon
exercise of each debt warrant and the price at which such
principal amount of debt securities may be purchased upon such
exercise;
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the date on which the right to exercise such debt warrants shall
commence and the date on which such right shall expire;
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a discussion of the material United States federal income tax
considerations applicable to the ownership or exercise of debt
warrants;
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whether the debt warrants represented by the debt warrant
certificates will be issued in registered or bearer form, and,
if registered, where they may be transferred and registered;
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call provisions of such debt warrants, if any; and
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any other terms of the debt warrants.
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The debt warrant certificates will be exchangeable for new debt
warrant certificates of different denominations and debt
warrants may be exercised at the corporate trust office of the
warrant agent
23
or any other office indicated in the applicable prospectus
supplement. Prior to the exercise of their debt warrants,
holders of debt warrants will not have any of the rights of
holders of the debt securities purchasable upon such exercise
and will not be entitled to any payments of principal and
premium, if any, and interest, if any, on the debt securities
purchasable upon such exercise.
Exercise of Debt Warrants. Each debt warrant
will entitle the holder to purchase for cash such principal
amount of debt securities at such exercise price as shall in
each case be set forth in, or be determinable as set forth in,
the applicable prospectus supplement relating to the debt
warrants offered thereby. Unless otherwise specified in the
applicable prospectus supplement, debt warrants may be exercised
at any time up to 5:00 p.m., New York City time, on the
expiration date set forth in the applicable prospectus
supplement. After 5:00 p.m., New York City time, on the
expiration date, unexercised debt warrants will become void.
Debt warrants may be exercised as set forth in the applicable
prospectus supplement relating to the debt warrants. Upon
receipt of payment and the debt warrant certificate properly
completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable
prospectus supplement, we will, as soon as practicable, forward
the debt securities purchasable upon such exercise. If less than
all of the debt warrants represented by such debt warrant
certificate are exercised, a new debt warrant certificate will
be issued for the remaining amount of debt warrants.
Stock
Warrants
General. Reference is made to the applicable
prospectus supplement for the terms of stock warrants in respect
of which this prospectus is being delivered, the stock warrant
agreement relating to such stock warrants and the stock warrant
certificates representing such stock warrants, including the
following:
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the type and number of shares of preferred stock or common stock
purchasable upon exercise of such stock warrants and the
procedures and conditions relating to the exercise of such stock
warrants;
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the date, if any, on and after which such stock warrants and
related offered securities will be separately tradeable;
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the offering price of such stock warrants, if any;
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the initial price at which such shares may be purchased upon
exercise of stock warrants and any provision with respect to the
adjustment thereof;
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the date on which the right to exercise such stock warrants
shall commence and the date on which such right shall expire;
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a discussion of the material United States federal income tax
considerations applicable to the ownership or exercise of stock
warrants;
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call provisions of such stock warrants, if any;
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any other terms of the stock warrants;
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anti-dilution provisions of the stock warrants, if any; and
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information relating to any preferred stock purchasable upon
exercise of such stock warrants.
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The stock warrant certificates will be exchangeable for new
stock warrant certificates of different denominations and stock
warrants may be exercised at the corporate trust office of the
warrant agent or any other office indicated in the applicable
prospectus supplement. Prior to the exercise of their stock
warrants, holders of stock warrants will not have any of the
rights of holders of shares of capital stock purchasable upon
such exercise, and will not be entitled to any dividend payments
on such capital stock purchasable upon such exercise.
24
Exercise of Stock Warrants. Each stock warrant
will entitle the holder to purchase for cash such number of
shares of preferred stock or common stock, as the case may be,
at such exercise price as shall in each case be set forth in, or
be determinable as set forth in, the applicable prospectus
supplement relating to the stock warrants offered thereby.
Unless otherwise specified in the applicable prospectus
supplement, stock warrants may be exercised at any time up to
5:00 p.m., New York City time, on the expiration date set
forth in the applicable prospectus supplement. After
5:00 p.m., New York City time, on the expiration date,
unexercised stock warrants will become void.
Stock warrants may be exercised as set forth in the applicable
prospectus supplement relating thereto. Upon receipt of payment
and the stock warrant certificates properly completed and duly
executed at the corporate trust office of the warrant agent or
any other office indicated in the applicable prospectus
supplement, we will, as soon as practicable, forward a
certificate representing the number of shares of capital stock
purchasable upon such exercise. If less than all of the stock
warrants represented by such stock warrant certificate are
exercised, a new stock warrant certificate will be issued for
the remaining amount of stock warrants.
25
DESCRIPTION OF
SUBSCRIPTION RIGHTS
General
We may issue subscription rights to purchase common stock,
preferred stock, debt securities or other securities.
We may issue subscription rights independently or together with
any other offered security, which may or may not be transferable
by the shareholder. In connection with any offering of
subscription rights, we may enter into a standby arrangement
with one or more underwriters or other purchasers pursuant to
which the underwriters or other purchasers may be required to
purchase any securities remaining unsubscribed for after such
offering.
The description in the applicable prospectus supplement of any
subscription rights we offer will not necessarily be complete
and will be qualified in its entirety by reference to the
applicable subscription rights certificate or subscription
rights agreement, to the extent necessary or required for the
particular transaction, which will be filed with the SEC if such
certificate or agreement is required. We urge you to read the
applicable subscription rights certificate, the applicable
subscription rights agreement and any applicable prospectus
supplement in their entirety.
General Terms of
the Subscription Rights
The prospectus supplement relating to any subscription rights we
may offer will contain the specific terms of the subscription
rights. These terms may include the following:
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the price, if any, for the subscription rights;
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the exercise price payable for common stock, preferred stock,
debt securities or other securities upon the exercise of the
subscription rights;
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the number of subscription rights issued to each security holder;
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the number and terms of the common stock, preferred stock, debt
securities or other securities which may be purchased per each
subscription right;
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the extent to which the subscription rights are transferable;
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any provisions for adjustment of the number or amount of
securities receivable upon exercise of the subscription rights
or the exercise price of the subscription rights;
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any other terms of the subscription rights, including the terms,
procedures and limitations relating to the exchange and exercise
of the subscription rights;
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the date on which the right to exercise the subscription rights
shall commence, and the date on which the subscription rights
shall expire;
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the extent to which the subscription rights may include an
over-subscription privilege with respect to unsubscribed
securities; and
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if applicable, the material terms of any standby underwriting or
purchase arrangement entered into by us in connection with the
offering of subscription rights.
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26
PLAN OF
DISTRIBUTION
General
We and the selling stockholders may sell the securities covered
by this prospectus using one or more of the following methods:
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underwriters in a public offering;
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at the market to or through market makers or into an
existing market for the securities;
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ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the
securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
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privately negotiated transactions;
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short sales (including short sales against the box);
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through the writing or settlement of standardized or
over-the-counter options or other hedging or derivative
transactions, whether through an options exchange or otherwise;
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by pledge to secure debts and other obligations;
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in other ways not involving market makers or established trading
markets, including direct sales to purchasers or sales effected
through agents;
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a combination of any such methods of sale; and
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any other method permitted pursuant to applicable law.
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To the extent required by law, this prospectus may be amended or
supplemented from time to time to describe a specific plan of
distribution. Any prospectus supplement relating to a particular
offering of securities may include the following information to
the extent required by law:
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the terms of the offering;
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the names of any underwriters or agents;
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the purchase price of the securities;
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any delayed delivery arrangements;
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any underwriting discounts and other items constituting
underwriters compensation;
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any initial public offering price; and
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any discounts or concessions allowed or reallowed or paid to
dealers.
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We and the selling stockholders may offer securities to the
public through underwriting syndicates represented by managing
underwriters or through underwriters without an underwriting
syndicate. If underwriters are used for the sale of securities,
the securities will be acquired by the underwriters for their
own account. The underwriters may resell the securities in one
or more transactions, including in negotiated transactions at a
fixed public offering price or at varying prices determined at
the time of sale. In connection with any such underwritten sale
of securities, underwriters may receive compensation from us
and/or the
selling stockholders, as applicable, for whom they may act as
agents, in the form of discounts, concessions or commissions.
Underwriters may sell securities to or through dealers, and the
dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters
and/or
commissions from the purchasers for whom they may act as agents.
Such compensation may be in excess of customary discounts,
concessions
27
or commissions. Underwriting compensation will not exceed 8% for
any offering under this Registration Statement.
If we or the selling stockholders use an underwriter or
underwriters in the sale of particular securities, we
and/or they
will execute an underwriting agreement with those underwriters
at the time of sale of those securities. To the extent required
by law, the names of the underwriters will be set forth in the
prospectus supplement used by the underwriters to sell those
securities. Unless otherwise indicated in the prospectus
supplement relating to a particular offering of securities, the
obligations of the underwriters to purchase the securities will
be subject to customary conditions precedent and the
underwriters will be obligated to purchase all of the securities
offered if any of the securities are purchased.
In effecting sales, brokers or dealers engaged by us or the
selling stockholders may arrange for other brokers or dealers to
participate. Broker-dealers may receive discounts, concessions
or commissions from us or the selling stockholders (or, if any
broker-dealer acts as agent for the purchaser of shares, from
the purchaser) in amounts to be negotiated. Such compensation
may be in excess of customary discounts, concessions or
commissions. If dealers are utilized in the sale of securities,
the names of the dealers and the terms of the transaction will
be set forth in a prospectus supplement, if required.
We and the selling stockholders may also sell securities from
time to time through agents. We will name any agent involved in
the offer or sale of such shares and will list commissions
payable to these agents in a prospectus supplement, if required.
These agents will be acting on a best efforts basis to solicit
purchases for the period of their appointment, unless we state
otherwise in any required prospectus supplement.
We or the selling stockholders may sell securities directly to
purchasers. In this case, we and they may not engage
underwriters or agents in the offer and sale of such shares.
The selling stockholders and any underwriters, broker-dealers or
agents that participate in the sale of the selling
stockholders shares of common stock or interests therein
may be underwriters within the meaning of the
Securities Act. Any discounts, commissions, concessions or
profit they earn on any resale of the shares may be underwriting
discounts and commissions under the Securities Act. Selling
stockholders who are underwriters within the meaning
of the Securities Act will be subject to the prospectus delivery
requirements of the Securities Act. We will make copies of this
prospectus available to the selling stockholders for the purpose
of satisfying the prospectus delivery requirements of the
Securities Act, if applicable. If any entity is deemed an
underwriter or any amounts deemed underwriting discounts and
commissions, the prospectus supplement will identify the
underwriter or agent and describe the compensation received from
the selling stockholders.
We are not aware of any plans, arrangements or understandings
between any of the selling stockholders and any underwriter,
broker-dealer or agent regarding the sale of the shares of our
common stock by the selling stockholders. We cannot assure you
that the selling stockholders will sell any or all of the shares
of our common stock offered by them pursuant to this prospectus.
In addition, we cannot assure you that the selling stockholders
will not transfer, devise or gift the shares of our common stock
by other means not described in this prospectus. Moreover, any
securities covered by this prospectus that qualify for sale
pursuant to Rule 144 under the Securities Act may be sold
under Rule 144 rather than pursuant to this prospectus.
From time to time, one or more of the selling stockholders may
pledge, hypothecate or grant a security interest in some or all
of the shares owned by them. The pledgees, secured parties or
persons to whom the shares have been hypothecated will, upon
foreclosure, be deemed to be selling stockholders. The number of
a selling stockholders shares offered under this
prospectus will decrease as and when it takes such actions. The
plan of distribution for that selling stockholders shares
will otherwise remain unchanged. In addition, a selling
stockholder may, from time to time, sell the shares
28
short, and, in those instances, this prospectus may be delivered
in connection with the short sales and the shares offered under
this prospectus may be used to cover short sales.
A selling stockholder may enter into hedging transactions with
broker-dealers and the broker-dealers may engage in short sales
of the shares in the course of hedging the positions they assume
with that selling stockholder, including, without limitation, in
connection with distributions of the shares by those
broker-dealers. A selling stockholder may enter into option or
other transactions with broker-dealers that involve the delivery
of the shares offered hereby to the broker-dealers, who may then
resell or otherwise transfer those securities.
A selling stockholder which is an entity may elect to make a pro
rata in-kind distribution of the shares of common stock to its
members, partners or shareholders. In such event we may file a
prospectus supplement to the extent required by law in order to
permit the distributees to use the prospectus to resell the
common stock acquired in the distribution. A selling stockholder
which is an individual may make gifts of shares of common stock
covered hereby. Such donees may use the prospectus to resell the
shares or, if required by law, we may file a prospectus
supplement naming such donees.
Indemnification
We and the selling stockholders may enter agreements under which
underwriters, dealers and agents who participate in the
distribution of securities may be entitled to indemnification by
us and/or
the selling stockholders against various liabilities, including
liabilities under the Securities Act, and to contribution with
respect to payments which the underwriters, dealers or agents
may be required to make.
Price
Stabilization and Short Positions
If underwriters or dealers are used in the sale, until the
distribution of the securities is completed, rules of the SEC
may limit the ability of any underwriters to bid for and
purchase the securities. As an exception to these rules,
representatives of any underwriters are permitted to engage in
transactions that stabilize the price of the securities. These
transactions may consist of bids or purchases for the purpose of
pegging, fixing or maintaining the price of the securities. If
the underwriters create a short position in the securities in
connection with the offering (that is, if they sell more
securities than are set forth on the cover page of the
prospectus supplement) the representatives of the underwriters
may reduce that short position by purchasing securities in the
open market.
We make no representation or prediction as to the direction or
magnitude of any effect that the transactions described above
may have on the price of the securities. In addition, we make no
representation that the representatives of any underwriters will
engage in these transactions or that these transactions, once
commenced, will not be discontinued without notice.
LEGAL
MATTERS
Unless otherwise specified in a prospectus supplement
accompanying this prospectus, the validity of the securities
offered by this prospectus will be passed upon by Fried, Frank,
Harris, Shriver & Jacobson LLP, New York, New York.
Any underwriters will be advised about legal matters by their
own counsel, which will be named in a prospectus supplement to
the extent required by law.
EXPERTS
The consolidated financial statements of CVR Energy, Inc. and
subsidiaries (referred to herein as Successor),
which collectively refer to the consolidated balance sheets of
Successor as of December 31, 2006 and 2007, and to the
related consolidated statements of operations, equity and cash
flows for Coffeyville Group Holdings, LLC and subsidiaries,
excluding Leiber Holdings LLC, as
29
discussed in note 1 to the consolidated financial
statements (referred to herein as Immediate
Predecessor), for the
174-day
period ended June 23, 2005 and for the Successor for the
233-day
period ended December 31, 2005 and for the years ended
December 31, 2006 and 2007 and have been incorporated by
reference herein in reliance upon the report of KPMG LLP,
independent registered public accounting firm, incorporated by
reference herein, and upon the authority of said firm as experts
in accounting and auditing.
The audit report covering the consolidated financial statements
of CVR Energy, Inc. and subsidiaries noted above contains an
explanatory paragraph that states that as discussed in
note 1 to the consolidated financial statements, effective
June 24, 2005, Successor acquired the net assets of
Immediate Predecessor in a business combination accounted for as
a purchase. As a result of these acquisitions, the consolidated
financial statements for the periods after the acquisitions are
presented on a different cost basis than that for the periods
before the acquisitions and, therefore, are not comparable. The
audit report also contains an explanatory paragraph that states
as discussed in note 2 to the consolidated financial
statements, the Company has restated its consolidated financial
statements as of and for the year ended December 31, 2007.
INCORPORATION BY
REFERENCE
The SEC allows us to incorporate by reference
information into this document. This means that we can disclose
important information to you by referring you to another
document filed separately with the SEC. The information
incorporated by reference is considered to be part of this
prospectus, and information that we file later with the SEC will
automatically update and supersede the previously filed
information. We incorporate by reference the documents listed
below and any future filings made by us with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(File
No. 1-33492)
(other than any portions of the respective filings that are
furnished, pursuant to Item 2.02 or Item 7.01 of
Current Reports on
Form 8-K
(including exhibits related thereto) or other applicable SEC
rules, rather than filed) prior to the termination of the
offerings under this prospectus:
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our Annual Report on
Form 10-K/A
for the year ended December 31, 2007, filed on May 8,
2008;
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our Quarterly Reports on
Form 10-Q
for the periods ended March 31, 2008, June 30, 2008,
and September 30, 2008, filed on May 15, 2008,
August 14, 2008, and November 13, 2008,
respectively; and
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our Current Reports on
Form 8-K
filed on January 7, 2008, January 7, 2008,
April 29, 2008, May 8, 2008, August 4, 2008,
September 26, 2008, September 29, 2008,
October 16, 2008, November 6, 2008, November 19,
2008, December 8, 2008, December 23, 2008 and
January 26, 2009.
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You may request a copy of any or all of the information
incorporated by reference into this prospectus (other than an
exhibit to the filings unless we have specifically incorporated
that exhibit by reference into the filing), at no cost, by
writing or telephoning us at the following address:
CVR Energy,
Inc.
2277 Plaza Drive, Suite 500
Sugar Land, Texas 77479
Attention: Investor Relations
Telephone:
(281) 207-3464
You should rely only on the information contained or
incorporated by reference into this prospectus or in any
prospectus supplement. We have not authorized anyone to provide
you with different information. If anyone provides you with
different or inconsistent information, you should not
30
rely on it. We are not making an offer to sell, or soliciting an
offer to buy, securities in any jurisdiction where the offer and
sale is not permitted.
WHERE YOU CAN
FIND MORE INFORMATION
We have filed with the SEC a registration statement on
Form S-3
under the Securities Act with respect to the common shares
offered hereby. This prospectus is part of a registration
statement we have filed with the SEC. As permitted by SEC rules,
this prospectus does not contain all of the information we have
included in the registration statement and the accompanying
exhibits. You may refer to the registration statement and the
exhibits for more information about us and our securities. The
registration statement and the exhibits are available at the
SECs Public Reference Room or through its website.
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You can read and copy any
materials we file with the SEC at its Public Reference Room at
100 F Street N.E., Washington DC, 20549. You can
obtain information about the operations of the SEC Public
Reference Room by calling the SEC at
1-800-SEC-0330.
The SEC also maintains a website that contains information we
file electronically with the SEC, which you can access over the
Internet at
http://www.sec.gov.
Our common stock is listed on the New York Stock Exchange (NYSE:
CVI), and you can obtain information about us at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New
York 10005. General information about us, including our annual
report on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K,
and amendments to those reports, is available free of charge
through our website at
http://www.cvrenergy.com
as soon as reasonably practicable after we electronically
file them with, or furnish them to, the SEC. Information on our
website is not incorporated into this prospectus or our other
securities filings and is not a part of these filings.
31
PART II
INFORMATION NOT
REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses
of Issuance and Distribution.
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The following table sets forth the costs and expenses, other
than selling or underwriting discounts and commissions, to be
incurred by us in connection with the issuance and distribution
of the securities being registered hereby. With the exception of
the SEC registration fee and FINRA filing fee, all fees and
expenses set forth below are estimates.
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SEC registration fee
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$
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22,192
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FINRA filing Fee
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$
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56,963
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Accounting fees and expenses
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$
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130,000
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Legal fees and expenses
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$
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375,000
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Trustee fees
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$
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15,000
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Printing and engraving expenses
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$
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230,000
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Miscellaneous expenses
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$
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845
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Total
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$
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830,000
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Item 15.
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Indemnification
of Directors and Officers.
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Section 145 of the Delaware General Corporation Law
authorizes a court to award, or a corporations board of
directors to grant, indemnity to directors and officers in terms
sufficiently broad to permit such indemnification under certain
circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act.
As permitted by the Delaware General Corporation Law, the
Registrants Certificate of Incorporation includes a
provision that eliminates the personal liability of its
directors for monetary damages for breach of fiduciary duty as a
director, except for liability:
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for any breach of the directors duty of loyalty to the
Registrant or its stockholders;
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for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
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under section 174 of the Delaware General Corporation Law
regarding unlawful dividends and stock purchases; or
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for any transaction for which the director derived an improper
personal benefit.
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As permitted by the Delaware General Corporation Law, the
Registrants Bylaws provide that:
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the Registrant is required to indemnify its directors and
officers to the fullest extent permitted by the Delaware General
Corporation Law, subject to very limited exceptions;
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the Registrant may indemnify its other employees and agents to
the fullest extent permitted by the Delaware General Corporation
Law, subject to very limited exceptions;
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the Registrant is required to advance expenses, as incurred, to
its directors and officers in connection with a legal proceeding
to the fullest extent permitted by the Delaware General
Corporation Law, subject to very limited exceptions;
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the Registrant may advance expenses, as incurred, to its
employees and agents in connection with a legal
proceeding; and
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the rights conferred in the Bylaws are not exclusive.
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II-1
The Registrants board of directors has approved a form of
indemnification agreement for its directors and officers and
expects that each of its current and future directors and
officers will enter into substantially similar indemnification
agreements with the Registrant to give the Registrants
directors and officers additional contractual assurances
regarding the scope of the indemnification set forth in the
Registrants Certificate of Incorporation and to provide
additional procedural protections. At present, there is no
pending litigation or proceeding involving a director, officer
or employee of the Registrant regarding which indemnification is
sought, nor is the Registrant aware of any threatened litigation
that may result in claims for indemnification.
The indemnification provisions in the Registrants
Certificate of Incorporation and Bylaws and the indemnification
agreements entered into between the Registrant and each of its
current and future directors and officers may be sufficiently
broad to permit indemnification of the Registrants
directors and officers for liabilities arising under the
Securities Act.
CVR Energy, Inc. and its subsidiaries are covered by liability
insurance policies which indemnify their directors and officers
against loss arising from claims by reason of their legal
liability for acts as such directors, officers or trustees,
subject to limitations and conditions as set forth in the
policies.
The Registration Rights Agreements between the registrant and
certain investors provides for cross-indemnification in
connection with registration of the registrants common
stock on behalf of such investors.
In connection with an offering of the securities registered
hereunder, the registrant may enter into an underwriting
agreement which may provide that the underwriters are obligated,
under certain circumstances, to indemnify directors, officers
and controlling persons of the registrant against certain
liabilities, including liabilities under the Securities Act.
The exhibits to this Registration Statement are listed on the
Exhibit Index page hereof, which is incorporated by
reference into this Item 16.
(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 this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities 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 the
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 SEC 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; and
(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 (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in
II-2
reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities 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.
(4) That, for the purpose of determining liability under
the Securities Act to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be
part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrants annual report, pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plans
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) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
or controlling persons of the registrant pursuant to the
provisions described in Part II, Item 15 hereof, or
otherwise, the registrant has been advised that in the opinion
of the SEC 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.
II-3
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
Sugar Land, Texas, on this 12th day of February, 2009.
CVR ENERGY, INC.
John J. Lipinski
Chief Executive Officer and President
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Signature
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Title
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Date
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/s/ John
J. Lipinski
John
J. Lipinski
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Chief Executive Officer, President and Director (Principal
Executive Officer)
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February 12, 2009
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*
James
T. Rens
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Chief Financial Officer (Principal Financial and Accounting
Officer)
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February 12, 2009
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/s/ C.
Scott Hobbs
C.
Scott Hobbs
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Director
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February 12, 2009
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*
Scott
L. Lebovitz
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Director
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February 12, 2009
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*
Regis
B. Lippert
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Director
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February 12, 2009
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*
George
E. Matelich
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Director
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February 12, 2009
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*
Steve
A. Nordaker
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Director
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February 12, 2009
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*
Stanley
de J. Osborne
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Director
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February 12, 2009
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*
Kenneth
A. Pontarelli
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Director
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February 12, 2009
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* Mark
Tomkins
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Director
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February 12, 2009
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* By:
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/s/ John
J. Lipinski
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John J. Lipinski, as
attorney-in-fact
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II-4
EXHIBIT INDEX
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Number
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Exhibit Title
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1
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.1**
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Form of Underwriting Agreement for Common Stock, Preferred
Stock, Debt Securities, Warrants and/or Subscription Rights.
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3
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.1*
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Amended and Restated Certificate of Incorporation of CVR Energy,
Inc. (filed as Exhibit 10.1 to the Companys Quarterly
Report on
Form 10-Q
for the quarterly period ended September 30, 2007 and
incorporated by reference herein).
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3
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.2*
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Amended and Restated Bylaws of CVR Energy, Inc. (filed as
Exhibit 10.2 to the Companys Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 2007 and
incorporated by reference herein).
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4
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.1*
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Specimen Common Stock Certificate (filed as Exhibit 4.1 to
the Companys Original Registration Statement on
Form S-1,
File
No. 333-137588
and incorporated by reference herein).
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4
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.2
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Form of Senior Debt Securities Indenture.
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4
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.3
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Form of Subordinated Debt Securities Indenture.
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4
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.4**
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Form of Warrant Agreement (Stock) (including form of Warrant
Certificate).
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4
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.5**
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Form of Warrant Agreement (Debt) (including form of Warrant
Certificate).
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4
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.6**
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Form of Subscription Rights Agreement (including form of
Subscription Rights Certificate).
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4
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.7**
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Form of Senior Note.
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4
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.8**
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Form of Subordinated Note.
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5
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.1
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Opinion of Fried, Frank, Harris, Shriver & Jacobson
LLP relating to the shares of common stock, preferred stock,
debt securities, warrants and subscription rights to be sold by
the Company.
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5
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.2
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Opinion of Fried, Frank, Harris, Shriver & Jacobson
LLP relating to the shares of common stock to be sold by the
selling stockholders.
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12
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.1
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Computation of Ratio of Earnings to Fixed Charges.
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23
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.1
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Consent of KPMG LLP.
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23
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.2
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Consent of Fried, Frank, Harris, Shriver & Jacobson
LLP (included in Exhibit 5.1).
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23
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.3
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Consent of Fried, Frank, Harris, Shriver & Jacobson
LLP (included in Exhibit 5.2).
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24
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.1*
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Power of Attorney.
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24
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.2
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Power of Attorney of C. Scott Hobbs.
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25
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.1
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Form T-1 Statement of Eligibility for the Senior Debt Securities
Indenture.
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25
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.2
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Form T-1 Statement of Eligibility for the Subordinated Debt
Securities Indenture.
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* |
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Previously filed. |
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** |
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To be filed by amendment or as an exhibit to a report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, including any Current Report on
Form 8-K,
and incorporated herein by reference if necessary or required by
the transaction. |
EX-4.2
Exhibit 4.2
CVR Energy, Inc.
and
Wells Fargo Bank, N.A., as Trustee
Indenture
Dated as
of _____________ , _____
Senior Debt Securities
CROSS REFERENCE SHEET*
Between
Provisions
of Trust Indenture Act (as defined herein) and Indenture, dated as of
____________ , _____, between CVR ENERGY, INC. and WELLS FARGO BANK, N.A., as Trustee:
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SECTION OF THE ACT |
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SECTION OF INDENTURE |
310(a)(1) and (2)
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6.9 |
310(a)(3) and (4)
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Inapplicable |
310(b)
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6.8, 6.10(a), (b) and (d) |
310(c)
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Inapplicable |
311(a)
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6.13 |
311(b)
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6.13 |
311(c)
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Inapplicable |
312(a)
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4.1 and 4.2 |
312(b)
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4.2 |
312(c)
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4.2 |
313(a)
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4.3 |
313(b)(1)
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Inapplicable |
313(b)(2)
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4.3 |
313(c)
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4.3, 5.11, 6.10, 6.11, 8.2 and 12.2 |
313(d)
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4.3 |
314(a)
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3.5 and 4.2 |
314(b)
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Inapplicable |
314(c)(1) and (2)
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11.5 |
314(c)(3)
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Inapplicable |
314(d)
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Inapplicable |
314(e)
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11.5 |
314(f)
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Inapplicable |
315(a), (c) and (d)
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6.1 |
315(b)
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5.11 |
315(e)
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5.12 |
316(a)(1)
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5.9 and 5.10 |
316(a)(2)
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Not required |
316(a) (last sentence)
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7.4 |
316(b)
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5.7 |
317(a)
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5.2 |
317(b)
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3.4(a) and (b) |
318(a)
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11.7 |
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* |
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This Cross Reference Sheet is not part of the Indenture. |
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS |
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1 |
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SECTION 1.1. CERTAIN TERMS DEFINED |
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1 |
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ARTICLE II SECURITIES |
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6 |
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SECTION 2.1. FORMS GENERALLY |
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6 |
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SECTION 2.2. FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION |
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7 |
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SECTION 2.3. AMOUNT UNLIMITED; ISSUABLE IN SERIES |
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7 |
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SECTION 2.4. AUTHENTICATION AND DELIVERY OF SECURITIES |
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10 |
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SECTION 2.5. EXECUTION OF SECURITIES |
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12 |
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SECTION 2.6. CERTIFICATE OF AUTHENTICATION |
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12 |
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SECTION 2.7. DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST |
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12 |
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SECTION 2.8. REGISTRATION, TRANSFER AND EXCHANGE |
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13 |
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SECTION 2.9. MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES |
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17 |
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SECTION 2.10. CANCELLATION OF SECURITIES; DESTRUCTION THEREOF |
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18 |
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SECTION 2.11. TEMPORARY SECURITIES |
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18 |
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SECTION 2.12. CUSIP NUMBERS |
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19 |
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ARTICLE III COVENANTS OF THE ISSUER |
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19 |
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SECTION 3.1. PAYMENT OF PRINCIPAL AND INTEREST |
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19 |
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SECTION 3.2. OFFICES FOR PAYMENTS, ETC |
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19 |
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SECTION 3.3. APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE |
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20 |
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SECTION 3.4. PAYING AGENTS |
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20 |
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SECTION 3.5. COMPLIANCE CERTIFICATES |
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21 |
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SECTION 3.6. CORPORATE EXISTENCE |
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21 |
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ARTICLE IV SECURITYHOLDER LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE |
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22 |
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SECTION 4.1. ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF
SECURITYHOLDERS |
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22 |
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SECTION 4.2. REPORTS BY THE ISSUER |
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22 |
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SECTION 4.3. REPORTS BY THE TRUSTEE |
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22 |
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ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
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23 |
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-i-
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SECTION 5.1. EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER OF DEFAULT
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23 |
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SECTION 5.2. COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT |
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25 |
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SECTION 5.3. APPLICATION OF PROCEEDS |
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27 |
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SECTION 5.4. SUITS FOR ENFORCEMENT |
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28 |
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SECTION 5.5. RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS |
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28 |
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SECTION 5.6. LIMITATIONS ON SUITS BY SECURITY HOLDERS |
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28 |
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SECTION 5.7. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS |
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29 |
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SECTION 5.8. POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF
DEFAULT |
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29 |
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SECTION 5.9. CONTROL BY HOLDERS OF SECURITIES |
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29 |
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SECTION 5.10. WAIVER OF PAST DEFAULTS |
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30 |
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SECTION 5.11. TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN
CIRCUMSTANCES |
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30 |
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SECTION 5.12. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS |
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31 |
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ARTICLE VI CONCERNING THE TRUSTEE |
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31 |
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SECTION 6.1. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO
DEFAULT |
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31 |
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SECTION 6.2. CERTAIN RIGHTS OF THE TRUSTEE |
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32 |
|
SECTION 6.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR
APPLICATION OF PROCEEDS THEREOF |
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34 |
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SECTION 6.4. TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS, ETC |
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34 |
|
SECTION 6.5. MONEYS HELD BY TRUSTEE |
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34 |
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SECTION 6.6. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM |
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34 |
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SECTION 6.7. RIGHT OF TRUSTEE TO RELY ON OFFICERS CERTIFICATE, ETC |
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35 |
|
SECTION 6.8. QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS |
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35 |
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SECTION 6.9. PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE |
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35 |
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SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE
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35 |
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SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE |
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37 |
|
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
TRUSTEE |
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38 |
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-ii-
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SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER |
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39 |
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SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT |
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39 |
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ARTICLE VII CONCERNING THE SECURITYHOLDERS |
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40 |
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SECTION 7.1. EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS |
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40 |
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SECTION 7.2. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES |
|
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40 |
|
SECTION 7.3. HOLDERS TO BE TREATED AS OWNERS |
|
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40 |
|
SECTION 7.4. SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING |
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41 |
|
SECTION 7.5. RIGHT OF REVOCATION OF ACTION TAKEN |
|
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41 |
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ARTICLE VIII SUPPLEMENTAL INDENTURES |
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|
41 |
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SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS |
|
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41 |
|
SECTION 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS |
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43 |
|
SECTION 8.3. EFFECT OF SUPPLEMENTAL INDENTURE |
|
|
44 |
|
SECTION 8.4. DOCUMENTS TO BE GIVEN TO TRUSTEE |
|
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45 |
|
SECTION 8.5. NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES |
|
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45 |
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ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
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45 |
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SECTION 9.1. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS |
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45 |
|
SECTION 9.2. SUCCESSOR SUBSTITUTED |
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45 |
|
SECTION 9.3. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE |
|
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46 |
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ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
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46 |
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SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE |
|
|
46 |
|
SECTION 10.2. APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES
|
|
|
49 |
|
SECTION 10.3. REPAYMENT OF MONEYS HELD BY PAYING AGENT |
|
|
49 |
|
SECTION 10.4. RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO
YEARS |
|
|
50 |
|
SECTION 10.5. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS |
|
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50 |
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|
ARTICLE XI MISCELLANEOUS PROVISIONS |
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|
50 |
|
-iii-
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SECTION 11.1. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER EXEMPT
FROM INDIVIDUAL LIABILITY |
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SECTION 11.2. PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS
OF SECURITIES AND COUPONS |
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SECTION 11.3. SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE |
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SECTION 11.4. NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES AND
COUPONS |
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SECTION 11.5. OFFICERS CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE
CONTAINED THEREIN |
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SECTION 11.6. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS |
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SECTION 11.7. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT |
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SECTION 11.8. NEW YORK LAW TO GOVERN; WAIVER OF JURY TRIAL |
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SECTION 11.9. COUNTERPARTS |
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SECTION 11.10. EFFECT OF HEADINGS |
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SECTION 11.11. SECURITIES IN A FOREIGN CURRENCY |
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SECTION 11.12. JUDGMENT CURRENCY |
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SECTION 11.13. FORCE MAJEURE |
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ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS |
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SECTION 12.1. APPLICABILITY OF ARTICLE |
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SECTION 12.2. NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS |
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SECTION 12.3. PAYMENT OF SECURITIES CALLED FOR REDEMPTION |
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SECTION 12.4. EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR
REDEMPTION |
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SECTION 12.5. MANDATORY AND OPTIONAL SINKING FUNDS |
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-iv-
THIS
INDENTURE, dated as of ____________ , _____, by and between CVR ENERGY, INC., a Delaware
corporation (the Issuer), and WELLS FARGO BANK, N.A., a national banking association, as trustee
(the Trustee),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of its debentures, notes
or other evidences of senior indebtedness to be issued in one or more series (the Securities) up
to such principal amount or amounts as may from time to time be authorized in accordance with the
terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
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,
the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities and of the coupons, if any, appertaining
thereto 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 (the Trust Indenture Act), or the definitions of which in the Securities Act of 1933, as
amended (the Securities Act), are referred to in the Trust Indenture Act, including terms defined
therein by reference to the Securities Act (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meaning assigned to such terms in the Trust
Indenture Act and in the Securities Act as in effect from time to time. 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 unless a
different time shall be specified with respect to such series of Securities as provided for in
Section 2.3. The words herein, hereof and hereunder and other words of similar import refer
to this Indenture as a whole 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.
Affiliate has the same meaning as given to that term in Rule 405 of the Securities Act or
any successor provision.
Authenticating Agent shall have the meaning set forth in Section 6.14.
Authorized Newspaper means a newspaper of general circulation in The City of New York and
will be, if practicable, The Wall Street Journal (Eastern Edition). If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or given with the approval
of the Trustee shall constitute a sufficient publication of such notice.
Board of Directors means either the Board of Directors of the Issuer or any committee of
such Board duly authorized to act on its behalf.
Board Resolution means a copy of one or more resolutions, certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted or consented to by the Board of
Directors and to be in full force and effect, and delivered to the Trustee.
Business Day means, with respect to any Security, a day that is not a day on which banking
institutions in the city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, are authorized or required by any applicable law or
regulation to be closed.
Capital Stock means, with respect to any corporation, any and all shares, interests, rights
to purchase (other than convertible or exchangeable indebtedness that is not itself otherwise
capital stock), warrants, options, participations or other equivalents of or interests (however
designated) in stock issued by that corporation.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, 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 it under the
Trust Indenture Act, then the body performing such duties on such date.
Corporate Trust Office means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered, which office is, as of
the date of this Indenture, located at 45 Broadway, 14th Floor, New York, NY 10006,
Attention: Corporate Trust Services.
Coupon means any interest coupon appertaining to an Unregistered Security.
Covenant Defeasance shall have the meaning set forth in Section 10.1(C).
Depositary means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer
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
-2-
Person, Depositary as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Global Securities of that series.
Dollar or $ means the coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Equity Interests means Capital Stock or partnership, participation or membership interests
and all warrants, options or other rights to acquire Capital Stock or partnership, participation or
membership interests (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock or partnership, participation or membership interests).
Event of Default means any event or condition specified as such in Section 5.1.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Fair Value when used with respect to any Voting Equity Interests of the Issuer means the
fair value as determined in good faith by the Board of Directors of the Issuer.
Foreign Currency means any coin, currency, currency unit or composite currency, including,
without limitation, the euro, issued by the government of one or more countries, other than the
United States of America or by any internationally recognized union, confederation or association
of such governments.
Holder, Holder of Securities, Securityholder or any other similar terms mean (a) in the
case of any Registered Security, the person in whose name such Security is registered in the
security register kept by the Issuer for that purpose in accordance with the terms hereof, and (b)
in the case of any Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
Indenture means this instrument as originally executed and delivered or, if 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 hereunder, provided, that,
if at any time more than one Person is acting as Trustee under this instrument, Indenture shall
mean, with respect to one or more series of Securities for which such person is trustee, this
instrument as originally executed and delivered or, if amended or supplemented as herein provided,
as so amended or supplemented or both, and shall include the forms and terms of those particular
series of Securities for which such Person is Trustee established as contemplated hereunder,
exclusive, however, of any provisions or terms which relate solely to other series of Securities
for which such person is not Trustee, regardless of when such terms or provisions were adopted.
IRS means the Internal Revenue Service of the United States Department of the Treasury, or
any successor entity.
Issuer means (except as otherwise provided in Article IX) CVR Energy, Inc., a Delaware
corporation, and, subject to Article IX, its successors and assigns.
-3-
Issuer Order means a written statement, request or order of the Issuer signed in its name by
the chairman of the Board of Directors, chief executive officer, president, any vice president or
the treasurer of the Issuer.
Judgment Currency has the meaning set forth in Section 11.12.
Non-U.S. Person means any person that is not a U.S. person as such term is defined in Rule
902 of the Securities Act.
Officers Certificate means a certificate signed by the chairman of the Board of Directors,
chief executive officer, president or any vice president or the treasurer of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act and include the statements provided for in Section 11.5.
Opinion of Counsel means an opinion in writing signed by legal counsel who may be an
employee of the Issuer or other counsel reasonably satisfactory to the Trustee. Each such opinion
shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in
Section 11.5.
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.
Original Issue 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.
Outstanding (except as otherwise provided in Section 7.4), when used with reference to
Securities, means, subject to the provisions of Section 7.4, as of any particular time, all
Securities authenticated and delivered by the Trustee 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 or U.S.
Government Obligations (as provided for in Section 10.1) in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if
the Issuer shall act as its own paying agent), provided, that if such Securities, or portions
thereof, are to be redeemed prior to the maturity thereof, written notice of such redemption shall
have been given as herein provided, or provisions satisfactory to the Trustee shall have been made
for giving such written notice; and
(c) Securities which shall have been paid or in substitution for which other Securities shall
have been authenticated and delivered pursuant to the terms of Section 2.9 (except with respect to
any such Security as to which proof satisfactory to the Trustee is
-4-
presented that such Security is held by a person in whose hands such Security is a legal,
valid and binding obligation of the Issuer).
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 an Original Issue 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.
Periodic Offering means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such
Securities.
Person means any individual, corporation, business trust, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
principal whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include and premium, if any, provided, however, that such inclusion
of premium, if any, shall under no circumstances result in the double counting of such premium for
the purpose of any calculation required hereunder.
record date shall have the meaning set forth in Section 2.7.
Registered 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 and any other legend required by the Depositary for
such series.
Registered Security means any Security registered on the Security register of the Issuer.
Required Currency shall have the meaning set forth in Section 11.12.
Responsible Officer when used with respect to the Trustee means any trust officer or
assistant trust officer, or any other 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 because of his or her knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the administration of this
Indenture.
Security or Securities (except as otherwise provided in Section 7.4) has the meaning
stated in the first recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
-5-
Securities Act means the Securities Act of 1933, as amended.
Subsidiary, with respect to any Person, means (i) a corporation a majority of whose Voting
Equity Interests is at the time, directly or indirectly, owned by such Person, by such Person and
one or more Subsidiaries of such Person or by one or more Subsidiaries of such Person, (ii) any
other Person (other than a corporation) in which such Person, one or more Subsidiaries of such
Person, or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the
date of determination thereof has at least majority ownership interest, or (iii) a partnership in
which such Person or a Subsidiary of such Person is, at the time, a general partner.
Trustee means the Person identified as Trustee in the first paragraph hereof and, subject
to the provisions of Article VI, shall also include any successor trustee. Trustee shall also
mean or include each Person who is then a trustee hereunder, and, if at any time there is more than
one such Person, Trustee as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
Unregistered Security means any Security other than a Registered Security.
U.S. Government Obligations shall have the meaning set forth in Section 10.1(A).
Voting Equity Interests means Equity Interests which at the time are entitled to vote in the
election of, as applicable, directors, members or partners generally; provided, that, for the
purposes hereof, Equity Interests that carry only the right to vote conditionally on the happening
of an event shall not be considered Voting Equity Interests whether or not such event shall have
happened.
Yield to Maturity means the yield to maturity on a series of securities, calculated at the
time of issuance of such series, or, if applicable, at the most recent redetermination of interest
on such series, and calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
SECTION 2.1. FORMS GENERALLY. The Securities of each series and the Coupons, if any, to be
attached thereto shall be substantially in such form as
shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to but not set forth in a Board Resolution, an
Officers Certificate detailing such establishment) 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 and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements as may be required to comply with any 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 and
Coupons, if any, as evidenced by their execution of such Securities and Coupons.
-6-
The definitive Securities and Coupons, if any, 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 and Coupons, if any, as evidenced by their execution of such Securities
and Coupons, if any.
SECTION 2.2. FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION. The Trustees certificate of
authentication on all Securities shall be in substantially the following form:
This is one of the Securities referred to in the within-mentioned Indenture.
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WELLS FARGO BANK, N.A., as Trustee |
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By |
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Authorized Signatory
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If at any time there shall be an Authenticating Agent appointed with respect to any series of
Securities, then the Trustees Certificate of Authentication to be borne by the Securities of each
such series shall be substantially as follows:
This is one of the Securities referred to in the within-mentioned Indenture.
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as Authenticating Agent
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By |
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Authorized Signatory
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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. There shall be established in or pursuant
to one or more Board Resolutions (and to the extent established pursuant to but not set forth in a
Board Resolution, in an Officers Certificate detailing such establishment) or established in one
or more indentures supplemental hereto, prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall distinguish the Securities of
the series from the Securities of all other series, and which may be part of a series of Securities
previously issued;
(2) 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
-7-
authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the Foreign Currency or Foreign Currencies in which the Securities
of the series are denominated;
(4) the date or dates on which the principal of the Securities of the series is payable or the
method of determination thereof;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, on which such interest shall be payable, the
terms and conditions of any deferral of interest and the additional interest, if any, thereon, the
right, if any, of the Issuer to extend the interest payment periods and the duration of the
extensions and (in the case of Registered Securities) the date or dates on which a record shall be
taken for the determination of Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
(6) the place or places where and the manner in which, the principal of and any interest on
Securities of the series shall be payable, if other than as provided in Section 3.2;
(7) the right, if any, of the Issuer to redeem Securities, in whole or in part, at its option
and the period or periods within which, or the date or dates on which, the price or prices at which
and any terms and conditions upon which Securities of the series may be so redeemed, pursuant to
any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the
series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option
of a Holder thereof and the price or prices at which and the period or periods within which or the
date or dates on which, and any terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof in the case of
Registered Securities, or $1,000 and $5,000 in the case of Unregistered Securities, the
denominations in which Securities of the series shall be issuable;
(10) the percentage of the principal amount at which the Securities will be issued, and, 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 thereof and the
terms and conditions of any acceleration;
(11) if other than the coin, currency or currencies in which the Securities of the series are
denominated, the coin, currency or currencies in which payment of the principal of or interest on
the Securities of such series shall be payable, including composite currencies or currency units;
(12) if the principal of or interest on the Securities of the series are to be payable, at the
election of the Issuer or a Holder thereof, in a coin or currency other than that in
-8-
which the Securities are denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(13) if the amount of payments of principal of and interest on the Securities of the series
may be determined with reference to an index or formula based on a coin, currency, composite
currency or currency unit other than that in which the Securities of the series are denominated,
the manner in which such amounts shall be determined;
(14) whether the Securities of the series will be issuable as Registered Securities (and if
so, whether such Securities will be issuable as Registered Global Securities) or Unregistered
Securities (with or without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the payment of interest
thereon and, if other than as provided in Section 2.8, the terms upon which Unregistered Securities
of any series may be exchanged for Registered Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer 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 Issuer will have the
option to redeem the Securities of the series rather than pay such additional amounts;
(16) if the Securities of the 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;
(17) any trustees, depositaries, authenticating or paying agents, transfer agents or
registrars of any other agents with respect to the Securities of such series;
(18) any deletion from, modification of or addition to the definitions, Events of Default,
defeasance provisions, covenants or other provisions with respect to the Securities of such series;
(19) if the Securities of the series are to be convertible into or exchangeable for any other
security or property of the Issuer, including, without limitation, securities of another Person
held by the Issuer or its Affiliates and, if so, the terms thereof;
(20) if the Securities of the series are to be secured by any assets or properties of the
Issuer or any of its Affiliates;
(21) if the Securities are to be guaranteed by any other entities; and
(22) any other terms of the series.
All Securities of any one series and Coupons, if any, appertaining thereto shall be
substantially identical, except in the case of Registered Securities as to denomination and except
-9-
as may otherwise be provided by or pursuant to the Board Resolution or Officers Certificate
referred to above or as set forth in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from time to time without consent of
any Holder, consistent with the terms of this Indenture, if so provided by or pursuant to such
Board Resolution, such Officers Certificate or in any indenture supplemental hereto.
SECTION 2.4. AUTHENTICATION AND DELIVERY OF SECURITIES. The Issuer may deliver Securities of
any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the
Trustee for authentication together with the applicable documents referred to below in this Section
2.4, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons, if any,
to or upon the order of the Issuer (contained in the Issuer Order referred to below in this
Section) or pursuant to such procedures reasonably acceptable to the Trustee and to such recipients
as may be specified from time to time by an Issuer Order. The maturity date, original issue date,
interest rate and any other terms of the Securities of such series and Coupons, if any,
appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If
provided for in such procedures, such Issuer Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents,
which instructions, if oral, shall be promptly confirmed in writing. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4)
below only at or before the time of the first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 6.1) shall be fully protected in conclusively
relying upon, the following enumerated documents unless and until such documents have been
superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if
the Securities and Coupons, if any, are not to be delivered to the Issuer, provided that, with
respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such
series for original issue from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c)
the maturity date or dates, original issue date or dates, interest rate or rates and any other
terms of Securities of such series shall be determined by an Issuer Order or pursuant to such
procedures and (d) if provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly
authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Board Resolution, Officers Certificate and/or executed supplemental indenture
referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities
and Coupons, if any, were established;
(3) an Officers Certificate stating that all conditions precedent to the issuance and
authorization of the Securities have been complied with; and
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(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed
to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the
effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and
established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been duly authorized and established in conformity
with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the
Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Issuer, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors rights and to general equity
principles;
(d) that the execution and delivery by the Issuer of such Securities does not conflict with
United States or New York law; and
(e) all conditions precedent to the issuance and authorization of the Securities have been
complied with.
Any counsel may state that such opinions are limited to matters arising under the laws of the
State of New York and the General Corporation Law of the State of Delaware. Such counsel may rely
upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably
satisfactory to the Trustee, in which case the opinion shall state that such counsel believes he
and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion
involves factual matters, he has relied, to the extent he deems proper, upon certificates of
officers of the Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver any Securities under
this section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors or trustees shall determine that
such action would expose the Trustee to personal liability to existing Holders or would affect the
Trustees own rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to
be issued in the form of one or more Registered Global Securities, then the Issuer shall execute
and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such
series, authenticate and deliver one or more Registered 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 Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or delivered or held pursuant to such
Depositarys instructions and (iv) shall bear a legend substantially to the following effect:
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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 Exchange Act and
any other applicable statute or regulation.
SECTION 2.5. EXECUTION OF SECURITIES. The Securities and each Coupon appertaining thereto,
if any, shall be signed on behalf of the Issuer by the chairman of its Board of Directors or its
president, or any executive officer, a vice president or its secretary. Such signatures may be the
manual or facsimile signatures of the present or any future such officers. The seal of the Issuer
may but need not be included or the Security affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in 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 Issuer who shall have signed any of the Securities or Coupons, if
any, shall cease to be such officer before the Security or Coupon so signed (or the Security to
which the Coupon so signed appertains) shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security or Coupon nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Security or Coupon had not ceased to be such
officer of the Issuer; and any Security or Coupon may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security or Coupon, shall be the proper
officers of the Issuer, 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, 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. No Coupon shall be entitled
to the benefits of this Indenture or shall be valid and obligatory for any purpose until the
certificate of authentication on the Security to which such Coupon appertains shall have been duly
executed by the Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer 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.
SECTION 2.7. DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST. The Securities of
each series shall be issuable as Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.3 or, with respect to the Registered Securities of any
series, if not so established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established, such Securities
shall be issuable in denominations of $1,000 and
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$5,000. 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 Issuer executing the same may
determine with the approval of the Trustee, as evidenced by the execution and authentication
thereof.
Each Registered Security shall be dated the date of its authentication. Each Unregistered
Security shall be dated as provided in the Board Resolution referred to in Section 2.3. 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.
The person in whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest payment date for such series, in which
case such defaulted interest shall be paid to the persons in whose names Outstanding Registered
Securities for such series are registered at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to the Holders of
Registered Securities not less than 15 days preceding such subsequent record date. The term
record date as used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date specified as such in the
terms of the Registered Securities of such series established as contemplated by Section 2.3, or,
if no such date is so established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month, whether or not such record
date is a Business Day.
SECTION 2.8. REGISTRATION, TRANSFER AND EXCHANGE. (a) The Issuer will keep 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 in which, subject to such reasonable regulations as the Issuer may
prescribe, it will provide for the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers shall be open for
inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered Security of any series at
any such office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer
shall execute and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same series, maturity date,
interest rate and original issue date in authorized denominations for a like aggregate principal
amount.
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Unregistered Securities (except for any temporary global Unregistered Securities) and Coupons
(except for Coupons attached to any temporary global Unregistered Securities) shall be transferable
by delivery.
At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2 and upon payment,
if the Issuer shall so require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, at the option of the Holder thereof,
except as otherwise specified pursuant to Section 2.3, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.2,
with, in the case of Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered
Securities of any series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for
such purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. Registered Securities of any series may not be exchanged for
Unregistered Securities of such series unless (1) otherwise specified pursuant to Section 2.3 and
(2) the Issuer has delivered to the Trustee an Opinion of Counsel that (x) the Issuer has received
from the IRS a ruling or (y) since the date hereof, there has been a change in the applicable
United States Federal income tax law, in either case to the effect that the inclusion of terms
permitting Registered Securities to be exchanged for Unregistered Securities would result in no
United States Federal income tax effect adverse to the Issuer or to any Holder. Whenever any
Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons, if any, surrendered upon any exchange or transfer provided
for in this Indenture shall be promptly cancelled and disposed of by the Trustee in accordance with
its regular procedures, and the Trustee shall deliver a certificate of disposition thereof to the
Issuer.
All Registered Securities presented for registration of transfer, exchange, redemption or
payment shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed, by the Holder or his attorney duly authorized in writing.
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The Issuer or the registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any exchange or registration of transfer
of Securities. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of (a) any Securities of
any series for a period of 15 days preceding the first mailing of notice of redemption of
Securities of such series to be redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may 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 Registered Securities of a series represented by one or
more Registered Global Securities notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall appoint a successor
Depositary eligible under Section 2.4 with respect to such Registered Securities. If a successor
Depositary eligible under Section 2.4 for such Registered Securities is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the
Issuers election pursuant to Section 2.3 that such Registered Securities be represented by one or
more Registered Global Securities shall no longer be effective and the Issuer 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 without coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities representing such
Registered Securities in exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the Registered Securities
of any series issued in the form of one or more Registered Global Securities shall no longer be
represented by a Registered Global Security or Securities. In such event the Issuer will execute,
and the Trustee, upon receipt of any 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 without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such Registered Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to Securities represented by a
Registered Global Security, the Depositary for such Registered Global Security may surrender
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such Registered 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 Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall authenticate and deliver,
without service charge,
(i) to the Person specified by such Depositary a new Registered 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 Persons beneficial interest in
the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Registered Global
Security and the aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in definitive registered form
without coupons, in authorized denominations, such Registered Global Security shall be cancelled by
the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form
without coupons issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer 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.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations
of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of Securities to the contrary,
none of the Issuer, the Trustee or any agent of the Issuer or the Trustee (any of which, other than
the Issuer, shall conclusively rely on an Officers Certificate and an Opinion of Counsel) shall be
required to exchange any Unregistered Security for a Registered Security if such exchange would
result in United States Federal income tax consequences adverse to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for United States
Federal income tax purposes, the interest payable on the Unregistered Securities) under then
applicable United States Federal income tax laws. The Trustee shall have no responsibility for any
actions taken or not taken by the Depositary.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers between or among
Depositary participants or beneficial owners of interests in any Registered Global Security) other
than to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this
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Indenture, and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 2.9. MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES. In case any
temporary or definitive Security or any Coupon appertaining to any Security shall be mutilated,
defaced, destroyed, lost or stolen, the Issuer in its discretion may execute and, upon the written
request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of
the same series, maturity date, interest rate and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution for the Security to
which such mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or stolen.
In every case, the applicant for a substitute Security or Coupon shall furnish to the Issuer and
to the Trustee and any agent of the Issuer 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 or Coupon and of the ownership thereof, and in the case of mutilation or defacement
shall surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer or the registrar 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 or Coupon 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 Issuer may, instead of issuing a substitute Security, pay or authorize the
payment of the same or the relevant Coupon (without surrender thereof except in the case of a
mutilated or defaced Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer 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 Issuer and the Trustee and any agent of the Issuer
or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security or
Coupons and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the provisions of this
Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost
or stolen Security or Coupon 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 or Coupons of such series
duly authenticated and delivered hereunder. All Securities and Coupons shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or
stolen Securities and Coupons and shall preclude any and all other rights or remedies
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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 and Coupons
surrendered for payment, redemption, registration of transfer or exchange, or for credit against
any payment in respect of a sinking or analogous fund, if any, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be delivered to the Trustee
or its agent for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities or Coupons shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee or its agent shall dispose of cancelled Securities and
Coupons held by it in accordance with its regular procedures. If the Issuer or its agent shall
acquire any of the Securities or Coupons, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities or Coupons unless and until the
same are delivered to the Trustee or its agent for cancellation.
SECTION 2.11. TEMPORARY SECURITIES. Pending the preparation of definitive Securities for any
series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities
for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be issuable as Registered
Securities without coupons, or as Unregistered Securities with or without coupons attached thereto,
of 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 Issuer with the concurrence of the Trustee as evidenced
by the execution and authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer 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
Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.2 and, in
the case of Unregistered Securities, at any agency maintained by the Issuer for such purpose as
specified pursuant to Section 2.3, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such series an equal aggregate principal amount of definitive
Securities of the same series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series, unless otherwise established pursuant to Section 2.3. The provisions of
this Section are subject to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to Section 2.3 (including
any provision that Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency located outside the
United States and the procedures pursuant to which definitive or global Unregistered Securities of
such series would be issued in exchange for such temporary global Unregistered Security).
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SECTION 2.12. CUSIP NUMBERS. The Issuer in issuing the Securities may use CUSIP numbers
(if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be place only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing
of any change in the CUSIP numbers.
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1. PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants and agrees for the
benefit of each series of Securities that it will duly and punctually pay or cause to be paid the
principal of, and interest on, if any, each of the Securities of such series (together with any
additional amounts payable pursuant to the terms of such Securities) at the place or places, at the
respective time or times and in the manner provided in such Securities and in the Coupons, if any,
appertaining thereto and in this Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the terms of such Securities) shall be
payable only upon presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered Security provides
that interest thereon may be paid while such Security is in temporary form, the interest on any
such temporary Unregistered Security (together with any additional amounts payable pursuant to the
terms of such Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such Securities for notation thereon of
the payment of such interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest, if any, on Registered 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 Issuer, 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 Securities register of the Issuer.
SECTION 3.2. OFFICES FOR PAYMENTS, ETC. So long as any Registered Securities are authorized
for issuance pursuant to this Indenture or are outstanding hereunder, the Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or agency (which may be the office of the
Trustee) where the Registered Securities of each series may be presented for payment, where the
Securities of each series may be presented for exchange as is provided in this Indenture and, if
applicable, pursuant to Section 2.3 and where the Registered Securities of each series may be
presented for registration of transfer as in this Indenture provided.
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The Issuer will maintain in the Borough of Manhattan, The City of New York, an office or
agency where notices and demands to or upon the Issuer in respect of the Securities of any series,
the Coupons appertaining thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of each such office or
agency and of any change of location thereof. In case the Issuer shall fail to maintain any agency
required by this Section to be located in the Borough of Manhattan, The City of New York, or shall
fail to give such notice of the location or for any change in the location of any of the above
agencies, presentations and demands may be made and notices may be served at the designated office
of the Trustee.
The Issuer may from time to time designate one or more additional offices or agencies where
the Securities of a series and any Coupons appertaining thereto may be presented for payment, where
the Securities of that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.3 and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may from time to time
rescind any such designation, as the Issuer may deem desirable or expedient; provided, that no such
designation or rescission shall in any manner relieve the Issuer of its obligations to maintain the
agencies provided for in this Section. The Issuer shall give to the Trustee prompt written notice
of any such designation or rescission thereof.
SECTION 3.3. APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The Issuer, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 6.9, a Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4. PAYING AGENTS. Whenever the Issuer 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 agent shall agree with the Trustee, subject
to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the principal
of or interest on the Securities of such series (whether such sums have been paid to it by the
Issuer 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 Coupons appertaining thereto, if any, or of the
Trustee;
(b) that it will give the Trustee notice of any failure by the Issuer (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; and
(c) that it will pay any such sums so held in trust by it to the Trustee upon the Trustees
written request at any time during the continuance of the failure referred to in the foregoing
clause (b).
The Issuer will, on or prior to each due date of the principal of or interest on the
Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or
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interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will
promptly notify the Trustee of any failure to take such action.
If the Issuer 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 or the Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer 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
Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to
one or more or all series of Securities 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 Issuer 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 3.5. COMPLIANCE CERTIFICATES. When any Securities are Outstanding, the Issuer will
furnish to the Trustee on or before March 31 in each year a brief certificate (which need not
comply with Section 11.5) from the principal executive, financial or accounting officer of the
Issuer stating that in the course of the performance by the signer of his or her duties as an
officer of the Issuer he or she would normally have knowledge of any default or non-compliance by
the Issuer in the performance of any covenants or conditions contained in this Indenture, stating
whether or not he or she has knowledge of any such default or non-compliance (without regard to
notice requirements or grace periods) and, if so, describing each such default or non-compliance of
which the signer has knowledge and the nature thereof.
The Issuer shall deliver to the Trustee, as soon as possible after the Issuer becomes aware of
the occurrence of any Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers Certificate setting forth the details of such
Event of Default or default and the action which the Issuer proposes to take with respect thereto.
SECTION 3.6. CORPORATE EXISTENCE. Subject to Article IX, the Issuer will do or cause to be
done all things necessary to preserve and keep in full force and effect its corporate existence and
the rights (charter and statutory), licenses and franchises of the Issuer and its Subsidiaries;
provided, that the Issuer shall not be required to preserve any such right, license or franchise,
if, in the judgment of the Issuer, the preservation thereof is no longer desirable in the conduct
of the business of the Issuer and its Subsidiaries taken as a whole and the loss thereof is not
disadvantageous in any material respect to the Securityholders.
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ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF
SECURITYHOLDERS. If and so long as the Trustee shall not be the Security registrar for the
Securities of any series, the Issuer and any other obligor on the Securities 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 Registered Securities of such series pursuant to Section
312 of the Trust Indenture Act:
(a) semi-annually not more than 5 days after each record date for the payment of interest on
such Registered Securities, as hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.3 for non-interest bearing Registered Securities in each year; and
(b) at such other times as the Trustee may reasonably request in writing, within thirty days
after receipt by the Issuer of any such request as of a date not more than 15 days prior to the
time such information is furnished.
SECTION 4.2. REPORTS BY THE ISSUER. To the extent any Securities are Outstanding, the Issuer
covenants to file with the Trustee copies of the annual reports and of the information, documents,
and other reports that the Issuer may be required to file with the Commission pursuant to Section
314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Issuers compliance with any covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers Certificates).
SECTION 4.3. REPORTS BY THE TRUSTEE
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each May 15 following the date of the initial issuance of
Securities under this Indenture deliver to Holders a brief report, dated as of such May 15, which
complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange, if any, upon which the Securities are listed, with the
Commission and with the Issuer. The Issuer will promptly notify the Trustee in writing when the
Securities are listed on any stock exchange and of any delisting thereof.
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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 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):
(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; provided that, a valid extension of an interest payment period by the Issuer in
accordance with the terms of such Securities shall not constitute a failure to pay interest; or
(b) default in the payment of all or any part of the principal or premium (if any) on 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 payment of any sinking fund installment as and when the same shall become
due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Issuer duly to observe or perform any other of the covenants or
agreements on the part of the Issuer in the Securities of such series or contained in this
Indenture (other than a covenant or agreement included in this Indenture solely for the benefit of
a series of Securities other than such series) for a period of 90 days after the date on which
written notice specifying such failure, stating that such notice is a Notice of Default hereunder
and demanding that the Issuer remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to the Issuer and the Trustee by
the holders of at least 25% in aggregate principal amount of the Outstanding Securities of the
series to which such covenant or agreement relates; or
(e) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer for any substantial part of its property
or ordering the winding up or liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
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official) of the Issuer or for any substantial part of its or their property, or make any
general assignment for the benefit of creditors; or
(g) any other Event of Default provided in the supplemental indenture or Board Resolution
under which such series of Securities is issued or in the form of Security for such series.
If an Event of Default described in clause (a), (b), (c), (d) or (g) occurs and is continuing,
then, and in each and every such case, except for any series of Securities the principal of which
shall have already become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of each such affected series then Outstanding
hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities
of such series are Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all Securities of such series, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same
shall become immediately due and payable.
If an Event of Default described in clause (e) or (f) above occurs and is continuing, then the
principal amount of all the Securities then Outstanding, and the interest accrued thereon, if any,
shall become and be immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
The foregoing provisions are subject to the condition that if, at any time after the principal
(or, if the Securities are Original Issue Discount Securities, such portion of the principal as may
be specified in the terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) 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,
(A) the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay
(i) all matured installments of interest upon all the Securities of such series (or all
the Securities, as the case may be); and
(ii) the principal of any and all Securities of such series (or of all the Securities,
as the case may be) which shall have become due otherwise than by acceleration; and
(iii) interest upon such 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 Original Issue Discount Securities)
specified in the Securities of such series (or at the respective rates of interest or Yields
to Maturity of all the Securities, as the case may be) to the date of such payment or
deposit; and
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(iv) all amounts payable to the Trustee pursuant to Section 6.6; and
(B) all Events of Default under the Indenture, other than the non-payment of the
principal of Securities which shall have become due by acceleration, shall have been
cured, waived or otherwise remedies as provided herein,
then and in every such case the Holders of a majority in aggregate principal amount of all the
Securities of such series voting as a separate class then Outstanding, by written notice to the
Issuer and to the Trustee, may waive all defaults with respect to such series and rescind and
annual 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 Original Issue
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 Original Issue 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 such Original Issue
Discount Securities.
SECTION 5.2. COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT. The Issuer
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 of the Securities of such series or upon
any redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer 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, and such Coupons, for
principal and 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 Original Issue 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, and such other amount due the Trustee under Section 6.6 in respect of
Securities of such series.
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on
the Securities of any series to the registered Holders, whether or not the Securities of such
series be overdue.
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In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name as trustee of an express trust, shall be entitled and empowered to institute any
action 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 Issuer or other obligor upon the Securities and collect in the
manner provided by law out of the property of the Issuer or other obligor upon the Securities,
wherever situated, all the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer 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 Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of the 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 Original Issue 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 amounts payable to
the Trustee under Section 6.6) and of the Securityholders allowed in any judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to the creditors or property of the
Issuer or such other obligor; and
(b) unless prohibited by applicable law and regulations, to vote on behalf of the holders of
the Securities of any series in any election of a receiver, assignee, trustee or a standby trustee
in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings,
custodian or other person performing similar functions in respect of any such proceedings; and
(c) 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, or liquidator, custodian or other
similar official performing similar functions in respect of any such proceedings is hereby
authorized by each of the Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the
Trustee its costs and expenses of collection and all other amounts due to it pursuant to Section
6.6.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization,
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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, except as aforesaid in clause (b).
All rights of action and of asserting claims under this Indenture, or under any of the
Securities of any series or Coupons appertaining to such Securities, may be enforced by the Trustee
without the possession of any of the Securities of such series or Coupons appertaining to such
Securities or the production thereof in any trial or other proceedings relative thereto, and 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 shall be awarded to the Trustee for ratable
distribution to the Holders of the Securities or Coupons appertaining to such Securities in respect
of which such action was taken, after payment of all sums due to the Trustee under Section 6.6 in
respect of such Securities.
In any proceedings brought by the Trustee (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 or Coupons appertaining to
such Securities in respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities parties to any such
proceedings.
SECTION 5.3. APPLICATION OF PROCEEDS. Any moneys collected by the Trustee pursuant to this
Article in respect of any series shall be applied in the following order at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Securities and Coupons appertaining to such Securities in respect
of which monies 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:
FIRST: To the payment of costs and expenses applicable to such series of Securities in respect
of which monies have been collected, including all amounts due to the Trustee and each predecessor
Trustee pursuant to Section 6.6 in respect to such series of Securities;
SECOND: In case the principal of the Securities of such series in respect of which moneys have
been collected shall not have become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of the installments on such
interest, with interest (to the extent that such interest has been collected by the Trustee and is
permitted by applicable law) upon the overdue installments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in
such Securities, such payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of which moneys have
been collected shall have become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series for principal and
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interest, with interest upon the overdue principal, and (to the extent that such interest has
been collected by the Trustee and is permitted by applicable law) upon the overdue installations of
interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such
series, then to the payment of such principal and interest or Yield to Maturity, without preference
or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity
over principal, or of any installment of interest over any other installment of interest or of any
Security of such series over any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or to such party as a court of
competent jurisdiction shall direct.
SECTION 5.4. 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.
SECTION 5.5. RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In case the Trustee 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,
then and in every such case the Issuer and the Trustee shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.6. LIMITATIONS ON SUITS BY SECURITY HOLDERS. No Holder of any Security of any
series or of any Coupon appertaining thereto 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 or with respect to this Indenture or such Security, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any
other remedy hereunder or thereunder, unless (a) such Holder previously shall have given to a
Responsible Officer of the Trustee written notice of an Event of Default with respect to Securities
of such series and of the continuance thereof, as hereinbefore provided, and (b) the Holders of not
less than 25% in aggregate principal amount of the Securities of such affected series then
Outstanding (treated as a single class) 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 security or indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred therein or thereby, and (c) 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 (d) no direction inconsistent with such written request shall have been
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given to the Trustee pursuant to Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or Coupon with every other taker and
Holder and the Trustee, that no one or more Holders of Securities of any series or Coupons
appertaining to such Securities shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture or any Security to affect, disturb or prejudice the
rights of any other such taker or Holder of Securities or Coupons appertaining to such Securities,
or to obtain or seek to obtain priority over or preference to any other such taker or Holder (it
being understood that the Trustee does not have an affirmative duty to ascertain whether or not
such actions or forbearances are unduly prejudicial to such Holders) or to enforce any right under
this Indenture or any Security, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and Coupons appertaining to
such Securities. For the protection and enforcement of the provisions of this Section, each and
every Securityholder and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 5.7. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS.
Notwithstanding any other provision in this Indenture and any provision of any Security, the right
of any Holder of any Security or Coupon to receive payment of the principal of and interest on such
Security or Coupon on or after the respective due dates expressed in such Security or Coupon or the
applicable redemption dates provided for in such Security, or 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 5.8. POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT. Except
as provided in Section 5.6, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders of Securities or Coupons 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.
No delay or omission of the Trustee or of any Holder of Securities or Coupons 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. Every power and remedy given by this Indenture, any Security or law to
the Trustee or to the Holders of Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or, subject to Section 5.6, by the Holders of
Securities or Coupons.
SECTION 5.9. CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority in aggregate
principal amount of the Securities of each series affected (with each such series voting 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
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with law and the provisions of this Indenture; and provided, further, that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow any such direction
if (a) the Trustee, being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken; or (b) if the Trustee by its trust committee of directors or
Responsible Officers of the Trustee shall determine in good faith that the action or proceedings so
directed would involve the Trustee in personal liability; or (c) if the Trustee in good faith shall
so determine that the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all affected series not joining
in the giving of said direction, it being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial
to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such direction or directions
by Securityholders.
SECTION 5.10. WAIVER OF PAST DEFAULTS. Prior to the declaration of acceleration of the
maturity of the Securities of any series as provided in Section 5.1, the Holders of a majority in
aggregate principal amount of the Securities of such series at the time Outstanding (voting as a
single class) may on behalf of the Holders of all such Securities waive any past default or Event
of Default described in Section 5.1 and its consequences, except a default in respect of a covenant
or provision hereof which cannot be modified or amended without the consent of the Holder of each
Security affected. In the case of any such waiver, the Issuer, the Trustee and the Holders of all
such Securities shall be restored to their former positions and rights hereunder, respectively, and
such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.11. TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES.
The Trustee shall, within 90 days after the occurrence of a default with respect to the Securities
of any series, give notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders thereof, by
publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York and (ii) to all Holders of Securities of such series in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, unless in each case such defaults shall have been
cured before the mailing or publication of such notice (the term default for the purpose of this
Section being hereby defined to mean any event or condition which is, or with notice or lapse of
time or both would become, an Event of Default); provided, that, except in the case of default in
the payment of the principal of or interest on any of the Securities of such series, or in the
payment of any installment on such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such series.
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SECTION 5.12. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS. All parties to
this Indenture agree, and each Holder of any Security or Coupon 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 series
holding in the aggregate more than 10% in aggregate principal amount of the Securities of such
series, or to any suit instituted by any 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.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT.
Prior to the occurrence of an Event of Default with respect to the Securities of a particular
series and after the curing or waiving of all Events of Default which may have occurred with
respect to such series, the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to such series of Securities. In case an
Event of Default with respect to the Securities of a series has occurred and has not been cured or
waived, the Trustee shall exercise with respect to such series of Securities such of the rights and
powers vested in it by this Indenture with respect to such series of Securities, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligence or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the Securities of any
series and after the curing or waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee with respect to the Securities of any
series shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or opinions furnished to the
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Trustee and conforming to the requirements of this Indenture; but in the case of any
such statements, certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders pursuant to Section 5.9 relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to Section 315 of the
Trust Indenture Act.
SECTION 6.2. CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and subject to the Trust
Indenture Act, and subject to Section 6.1:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, Officers Certificate or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other
paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officers Certificate or Issuer Order (unless other evidence in
respect thereof is specifically prescribed herein or in the terms established in respect of any
series); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel of its selection, and any advice or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall
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have offered to the Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers conferred upon it by
this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless (i) requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of any series then Outstanding or (ii)
otherwise provided in the terms of any series of Securities pursuant to Section 2.3; provided,
that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable security or indemnity satisfactory to it against such
expenses or liabilities as a condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee,
shall be repaid by the Issuer upon demand;
(g) 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 not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact an Event of Default is received by the Trustee at the Corporate Trust Office
and such notice references the Securities, the Issuer or this Indenture;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder;
(j) the Trustee may request that the Issuer deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture, which certificate may be signed by any person authorized to sign an Officers
Certificate, including any person specified as so authorized in any such certificate previously
delivered and not superseded;
(k) in no event shall the Trustee be responsible or liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action; and
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(l) the Trustee shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder.
SECTION 6.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR APPLICATION
OF PROCEEDS THEREOF. The recitals contained herein and in the Securities, except the Trustees
certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no representation as
to the validity or sufficiency of this Indenture or of the Securities or Coupons. The Trustee
shall not be accountable for the use or application by the Issuer of any of the Securities or of
the proceeds thereof.
SECTION 6.4. TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS, ETC. The
Trustee or any agent of the Issuer or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it were not the Trustee or
such agent.
SECTION 6.5. MONEYS HELD BY TRUSTEE. Subject to the provisions of Section 10.4 hereof, all
moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except
to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the
Issuer or the Trustee shall be under any liability for interest on any moneys received by it
hereunder.
SECTION 6.6. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to,
such compensation as the Issuer and the Trustee shall agree in writing (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express trust), and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of
it in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as may arise from its
negligence or willful misconduct. The Issuer also covenants to indemnify each of the Trustee or any
predecessor Trustee and their agents for, and to hold them harmless against, any and all loss,
damage, claims, liability or expense, including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee), arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim (whether asserted by the Issuer, or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers or duties hereunder,
or in connection with enforcing the provisions of this Section, except to the extent that such
loss, damage, claim, liability or expense is due to its own negligence or willful misconduct. When
the Trustee incurs expenses or renders services in connection with an Event of Default specified in
Section 5.1(e) or Section 5.1(f), the expenses (including the reasonable charges and expenses of
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its counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor
trustee and to pay or reimburse the Trustee and each predecessor trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of the Trustee. Such
additional indebtedness shall be a senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for the benefit of the
Holders of particular Securities or Coupons, and the Securities are hereby subordinated to such
senior claim.
SECTION 6.7. RIGHT OF TRUSTEE TO RELY ON OFFICERS CERTIFICATE, ETC. Subject to Sections 6.1
and 6.2, whenever in the administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers Certificate delivered
to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under
the provisions of this Indenture upon the faith thereof.
SECTION 6.8. QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS. The Trustee shall comply with
Section 310(b) of the Trust Indenture Act.
SECTION 6.9. PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee for each series of
Securities hereunder shall at all times be a corporation or banking association organized and doing
business under the laws of the United States of America, any State thereof or the District of
Columbia, having a combined capital and surplus of at least $50,000,000, and which is authorized
under such laws to exercise corporate trust powers and is subject to supervision or examination by
Federal, state or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and subject to Section 310(a) of the
Trust Indenture Act.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE. (a) The Trustee,
or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more
or all series of Securities by giving written notice of resignation to the Issuer and (i) if any
Unregistered Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least
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once in an Authorized Newspaper in the Borough of Manhattan, The City of New York, (ii) if any
Unregistered Securities of a series affected are then Outstanding, by mailing notice of such
resignation to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to
the Trustee and (iii) by mailing notice of such resignation to the Holders of then Outstanding
Registered Securities of each series affected at their addresses as they shall appear on the
registry books. Upon receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any series and have accepted
appointment within 30 days after the mailing of such notice of resignation, the resigning trustee
may petition any court of competent jurisdiction at the expense of the Issuer for the appointment
of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the provisions of
Section 5.12, on behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust
Indenture Act with respect to any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section
6.9 and Section 310(a) of the Trust Indenture Act and shall fail to resign after written
request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(iii) the Trustee shall become incapable of acting with respect to any series of
Securities, or shall be adjudged bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of
Securities and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 315(e) of the Trust Indenture Act, any Securityholder who has been a bona
fide Holder of a Security or Securities of such series for at least six months may on behalf of
himself and all others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect to such series.
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Such court may thereupon, after such notice, if any, as it may deem proper and so prescribe, remove
the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Securities of each series
at the time outstanding may at any time remove the Trustee with respect to Securities of such
series and appoint a successor trustee with respect to the Securities of such series by delivering
to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the Securityholders. If no
successor Trustee shall have been so appointed with respect to any series and have accepted
appointment within 30 days after the mailing of such notice of removal, the Trustee being removed
may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment
of a successor trustee with respect to such series pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any successor trustee
appointed as provided in Section 6.10 shall execute and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee with respect to all or any applicable series
shall become effective and such successor trustee, without any further act, deed or conveyance,
shall become vested with all rights, powers, duties and obligations with respect to such series of
its predecessor hereunder, with like effect as if originally named as trustee for such series
hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee,
upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such trustee to secure any amounts then due
it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one or more (but not
all) series, the Issuer, the predecessor trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of
any series as to which the predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
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such trustees co-trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be
qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of
Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this Section 6.11, the
Issuer shall give notice thereof (a) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, (b) if any Unregistered Securities of
a series affected are then Outstanding, to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing
such notice to such Holders at such addresses as were so furnished to the Trustee (and the Trustee
shall make such information available to the Issuer for such purpose) and (c) to the Holders of
Registered Securities of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by Section 6.10. If the Issuer fails to give
such notice within ten days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE. Any
corporation or banking association into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation or banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any corporation or banking
association succeeding to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided, that such corporation or banking
association shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under
the provisions of Section 6.9, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities of any series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any such successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate of authentication shall have the full
force which under this Indenture or the Securities of such series it is provided that the
certificate of authentication of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor trustee or to authenticate Securities of any
series in the name
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of any predecessor trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER. The Trustee shall comply
with Section 311 (a) of the Trust Indenture Act, excluding any creditor relationship listed in
Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT. As long as any Securities of a series
remain Outstanding, the Trustee may, by an instrument in writing, appoint with the approval of the
Issuer an authenticating agent (the Authenticating Agent) which shall be authorized to act on
behalf of the Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9. Securities of each such
series authenticated by such Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee.
Whenever reference is made in this Indenture to the authentication and delivery of Securities of
any series by the Trustee or to the Trustees Certificate of Authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating
Agent for such series and a Certificate of Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any State, authorized under
such laws to exercise corporate trust powers, having a combined capital and surplus of at least
$45,000,000 (determined as provided in Section 6.9 with respect to the Trustee) and subject to
supervision or examination by Federal or state authority.
Any corporation into which any Authenticating Agent may be merged or converted, or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which any Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if it
shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee and
to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section 6.14 with respect to one or more series of Securities, the Trustee shall upon receipt of an
Issuer Order appoint a successor Authenticating Agent, and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the extent provided in
Section 11.4. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. The Issuer agrees to
pay to the Authenticating Agent for such series from time to time reasonable
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compensation. The Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction of the Trustee, nor
shall the Trustee have any responsibility or liability for any action taken by the Authenticating
Agent.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by 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 Issuer,
if made in the manner provided in this Article.
SECTION 7.2. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES. 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. The holding of Registered
Securities shall be proved by the Security register or by a certificate of the registrar thereof.
SECTION 7.3. HOLDERS TO BE TREATED AS OWNERS. The Issuer, the Trustee and any agent of the
Issuer 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 notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal of and, subject to
the provisions of this Indenture, interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Holder of any Unregistered Security and the Holder of any Coupon as the absolute owner of
such Unregistered Security or Coupon (whether or not such Unregistered Security or Coupon shall be
overdue) for the purpose of receiving payment thereof or on account thereof and for all other
purposes, and neither the Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such person, or upon his
order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Unregistered Security or Coupon.
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SECTION 7.4. SECURITIES OWNED BY ISSUER 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 request, demand, authorization, direction, notice, consent, waiver or other
action by Securityholders under this Indenture, Securities which are owned by the Issuer or any
other obligor on the Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer 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 action only Securities which a Responsible Officer of the Trustee
actually 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 pledgees right so to act with respect to such Securities and that the pledgee is not
the Issuer 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 Issuer or any
other obligor on the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in accordance with such
advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers
Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held
by or for the account of any of the above-described persons; and, subject to Sections 6.1 and 6.2,
the Trustee shall be entitled to accept such Officers Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein are Outstanding for
the purpose of any such determination.
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
Security 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 or on registration
of transfer thereof, 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 Issuer, 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
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SECURITYHOLDERS. The Issuer, when authorized by a Board Resolution (which resolution may
provide general terms or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may
from time to time and at any time, without consent of any Securityholders, enter into an indenture
or indentures supplemental hereto 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 Issuer, or successive
successions, and the assumption by the successor corporation of the covenants, agreements and
obligations of the Issuer pursuant to Article IX;
(c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or
provisions as the Issuer and the Trustee shall consider to be for the protection or benefit of the
Holders of Securities or Coupons, and to make the occurrence, or the occurrence and continuance, of
a default in any such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies provided in this Indenture
as herein set forth; provided, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit
the remedies available to the Trustee upon such an Event of Default or may limit the right of the
Holders of a majority in aggregate principal amount of the Securities of such series to waive such
an Event of Default;
(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 any other provisions as the Issuer may deem
necessary or desirable, provided, that no such action shall adversely affect the interests of the
Holders of the Securities or Coupons in any material respect;
(e) to establish the forms or terms of Securities of any series or of the Coupons appertaining
to such Securities 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 one trustee, pursuant to the requirements of Section 6.11;
(g) to comply with SEC requirements to effect or maintain the qualification of this Indenture
under the Trust Indenture Act;
(h) to evidence and provide for the acceptance and appointment under this Indenture of a
successor Trustee pursuant to the requirements hereof;
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(i) to add one or more guarantees under this Indenture or release a guarantee pursuant to the
provisions hereof; and
(j) to change or eliminate any of the provisions of this Indenture, or to add any new
provision to this Indenture, in respect of one or more series of Securities; provided, however,
that any such change, elimination or addition shall not apply to any Security Outstanding on the
date of such indenture supplemental hereto.
The Trustee is hereby authorized to join with the Issuer 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 Trustees 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.
(A) Except as set forth in paragraph (B) below, 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 any series of Securities affected by such supplemental
indenture, the Issuer, when authorized by a Board Resolution (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the Trustee 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 and effect 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 or of the
Coupons appertaining to such Securities.
(B) No such supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or premium thereon, if any, 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 premium
thereon, if any, or interest thereon payable in any coin or currency other than that provided in
the Securities and Coupons or in accordance with the terms thereof, or reduce the amount of the
principal of an Original Issue 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
the payment thereof when due or, if the Securities provide therefor, any right of repayment at the
option of the Securityholder, in each case without the
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consent of the Holder of each Security so affected, or (ii) 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.
(C) 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, or of
Coupons appertaining to such Securities, 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 or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such action and may provide
that the specific terms of such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of the Issuer authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of the Holders of the Securities as aforesaid and other documents, if any, required by
Section 7.1, the Trustee shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustees own rights, duties or immunities under
this Indenture or otherwise, in which case the 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 Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall give notice thereof (i) to the
Holders of then Outstanding Registered 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, (ii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so furnished to the Trustee and (iii) if
any Unregistered Securities of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, and in each case such notice shall set forth in general terms
the substance of such supplemental indenture. Any failure of the Issuer 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. 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 Issuer 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
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amendments, and all 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
Sections 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 may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the
Issuer, 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. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The Issuer shall not
consolidate with or merge into any other Person or transfer or lease its properties and assets
substantially as an entirety to any Person, and the Issuer shall not permit any other Person to
consolidate with or merge into the Issuer, unless:
(a) either the Issuer shall be the continuing corporation, or the successor (if other than the
Issuer) formed by such consolidation or into which the Issuer is merged or to which the properties
and assets of the Issuer substantially as an entirety are transferred or leased shall be a
corporation, limited liability company, partnership or other entity organized and existing under
the laws of the United States of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Issuer under the Securities and this
Indenture; and
(b) immediately after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Issuer or a Subsidiary as a result of such transaction as having been
incurred by the Issuer or such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing.
SECTION 9.2. SUCCESSOR SUBSTITUTED. The successor formed by such consolidation or into which
the Issuer is merged or to which such transfer or lease is made shall succeed to and be substituted
for, and may exercise every right and power of, the Issuer under this Indenture with the same
effect as if such successor had been named as the Issuer herein, and thereafter (except in the case
of a lease to another Person) the predecessor corporation shall be relieved of all obligations and
covenants under the Indenture and the Securities and, in the event
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of such conveyance or transfer, any such predecessor corporation may be dissolved and
liquidated.
SECTION 9.3. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall receive an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale or conveyance, and any such assumption, complies with the
provisions of this Article IX.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE
(A) If at any time (i) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities of such series and Coupons appertaining thereto 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 Issuer shall have
delivered to the Trustee for cancellation all Securities of any series theretofore authenticated
and all unmatured Coupons appertaining thereto (other than any Securities of such series and
Coupons appertaining thereto which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.9) or (iii) in the case of any series of Securities
where the exact amount (including the currency of payment) of principal of and interest due on
which can be determined at the time of making the deposit referred to in clause (b) below, (a) all
the Securities of such series and all unmatured Coupons appertaining thereto 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 Issuer
shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
the entire amount in (i) cash (other than moneys repaid by the Trustee or any paying agent to the
Issuer in accordance with Section 10.4), (ii) in the case of any series of Securities the payments
on which may only be made in Dollars, direct obligations of the United States of America, backed by
its full faith and credit (U.S. Government Obligations), maturing as to principal and interest at
such times and in such amounts as will insure the availability of cash sufficient, in the opinion
of a nationally recognized firm of independent public accountants, an independent investment
banking firm or other valuation firm expressed in a written certification thereof delivered to the
Trustee, to pay at such maturity or upon such redemption, as the case may be, or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized firm of independent
public accountants, an independent investment banking firm or other valuation firm expressed in a
written certification thereof delivered to the Trustee, to pay (x) the principal and interest on
all Securities of such series and Coupons appertaining thereto 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 the Indenture and the Securities of
such series; and if, in any such case, the Issuer shall also pay or cause to be paid all other sums
payable
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hereunder by the Issuer, then this Indenture shall cease to be of further effect (except as to
(i) rights of registration of transfer and exchange of Securities of such Series and of Coupons
appertaining thereto pursuant to Section 2.8 and the Issuers right of optional redemption, if any,
(ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of holders of Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if
any, (iv) any optional redemption rights of such series of Securities to the extent to be exercised
to make such call for redemption within one year, (v) the rights, obligations, duties and
immunities of the Trustee hereunder, including those under Section 6.6, (vi) the rights of the
Holders of Securities of such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of them, and (vii) the
obligations of the Issuer under Section 3.2) and the Trustee, on demand of the Issuer accompanied
by an Officers Certificate and an Opinion of Counsel and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture;
provided, that the rights of Holders of the Securities and Coupons to receive amounts in respect of
principal of and interest on the Securities and Coupons 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 Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
(B) The following provisions shall apply to the Securities of each series unless specifically
otherwise provided in a Board Resolution, Officers Certificate or indenture supplemental hereto
provided pursuant to Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts (including the
currency of payment) of principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (a) below, the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the date of the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Securities of such series and Coupons appertaining
thereto shall no longer be in effect (except as to (i) rights of registration of transfer and
exchange of Securities of such series and of Coupons appertaining thereto pursuant to Section 2.8
and the Issuers right of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders
to receive mandatory sinking fund payments, if any, (iv) any optional redemption rights of such
series of Securities to the extent to be exercised to make such call for redemption within one
year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, (vi) the rights
of the Holders of Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all or any of them and
(vii) the obligations of the Issuer under Section 3.2) and the Trustee, at the expense of the
Issuer, shall at the Issuers request, execute proper instruments acknowledging the same, if
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(a) with reference to this provision the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Securities of such series and
Coupons appertaining thereto (i) cash in an amount, or (ii) in the case of any series of Securities
the payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to
principal and interest at such times and in such amounts as will insure the availability of cash or
(iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants, an independent investment banking firm or other valuation firm
expressed in a written certification thereof delivered to the Trustee, to pay (A) the principal and
interest on all Securities of such series and Coupons appertaining thereto on each date that such
principal or interest is due and payable and (b) any mandatory sinking fund payments on the dates
on which such payments are due and payable in accordance with the terms of the Indenture and the
Securities of such series;
(b) such deposit will not result in a breach or violation of, or constitute a default under,
any agreement or instrument to which the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of Counsel based on the fact that (x)
the Issuer has received from, or there has been published by, the IRS a ruling or (y) since the
date hereof, there has been a change in the applicable United States Federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the Holders of the Securities
of such series and Coupons appertaining thereto will not recognize income, gain or loss for United
States Federal income tax purposes as a result of such deposit, defeasance and discharge and will
be subject to United States Federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit, defeasance and discharge had not occurred;
and
(d) the Issuer has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
(C) The Issuer shall be released from its obligations under Sections 3.1, 3.5, 3.6, 3.7 and
9.1 and unless otherwise provided for in the Board Resolution, Officers Certificate or Indenture
supplemental hereto establishing such series of Securities, from all covenants and other
obligations referred to in Section 2.3(18) or 2.3(20) with respect to such series of Securities,
and any Coupons appertaining thereto, outstanding on and after the date the conditions set forth
below are satisfied (hereinafter, covenant defeasance). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of any series, the Issuer may
omit to comply with and shall have no liability in respect of any term, condition or limitation set
forth in such Section, whether directly or indirectly by reason of any reference elsewhere herein
to such Section or by reason of any reference in such Section to any other provision herein or in
any other document and such omission to comply shall not constitute an Event of Default under
Section 5.1, but the remainder of this Indenture and such Securities and Coupons shall be
unaffected thereby. The following shall be the conditions to application of this subsection C of
this Section 10.1:
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(a) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the holders of the Securities of such series and
coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of any series of
Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing
as to principal and interest at such times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants, an independent investment banking firm or other valuation firm
expressed in a written certification thereof delivered to the Trustee, to pay (A) the principal and
interest on all Securities of such series and Coupons appertaining thereof and (B) any mandatory
sinking fund payments on the day on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series;
(b) No Event of Default or event which with notice or lapse of time or both would become an
Event of Default with respect to the Securities shall have occurred and be continuing on the date
of such deposit;
(c) Such covenant defeasance shall not cause the Trustee to have a conflicting interest as
defined in Section 6.8 and for purposes of the Trust Indenture Act with respect to any securities
of the Issuer;
(d) Such covenant defeasance shall not cause any Securities then listed on any registered
national securities exchange under the Exchange Act to be delisted;
(e) The Issuer shall have delivered to the Trustee an Officers Certificate and Opinion of
Counsel to the effect that the Holders of the Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss for United States Federal income tax purposes as a
result of such covenant defeasance and will be subject to United States Federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such covenant
defeasance had not occurred; and
(f) The Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the covenant
defeasance contemplated by this provision 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 (or other 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 Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto 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
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series, all moneys then held by any paying agent under the provisions of this Indenture with
respect to such series of Securities shall, upon demand of the Issuer, be repaid to it or 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 MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO YEARS. Any
moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal
of or interest on any Security of any series and of any Coupons attached thereto 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 Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the
Securities of such series and of any Coupons appertaining thereto shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter
look only to the Issuer 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, 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 (a) in respect of Registered Securities of
any series, shall at the expense of the Issuer, mail by first-class mail to Holders of such
Securities at their addresses as they shall appear on the Security register, and (b) in respect of
Unregistered Securities of any series, shall at the expense of the Issuer cause to the published
once, in an Authorized Newspaper in the Borough of Manhattan, The City of New York, 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 or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.5. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Issuer shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 10.1 or the principal or interest received in respect of
such obligations.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER EXEMPT FROM
INDIVIDUAL LIABILITY. No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or 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 Issuer or of any successor, either directly or through the Issuer 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 and the Coupons, if any, appertaining
thereto by the Holders thereof and as part of the consideration for the issue of the Securities and
the
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Coupons appertaining thereto.
SECTION 11.2. PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS OF
SECURITIES AND COUPONS. Nothing in this Indenture, in the Securities or in the Coupons
appertaining thereto, expressed or implied, shall give or be construed to give to any person, firm
or corporation, other than the parties thereto and their successors and the Holders of the
Securities or Coupons, if any, 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 or
Coupons, if any.
SECTION 11.3. SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE. All the covenants,
stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer
shall bind its successors and assigns, whether so expressed or not.
SECTION 11.4. NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES AND COUPONS.
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 of Securities or Coupons, if any, to or on the Issuer
shall be in writing (including telecopy) and 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 Issuer is filed by the Issuer with the Trustee) to CVR Energy, Inc., 2277
Plaza Drive, Suite 500, Sugar Land, Texas, 77479, Attention: Secretary, Telecopy: (913) 981-0002.
Any notice, direction, request or demand by the Issuer or any Holder of Securities or Coupons, if
any, to or upon the Trustee shall be in writing (including telecopy) and shall be deemed to have
been sufficiently given or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the Trustee is filed by
the Trustee with the Issuer) to Wells Fargo Bank, N.A., 45 Broadway, 14th Floor, New
York, NY 10006, Attention: Corporate Trust Services, Telecopy: (212) 515-1589.
Where this Indenture provides for notice to Holders of Registered Securities, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class mail, postage prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register.
Where this Indenture provides for notice to holders of Unregistered Securities, such notice
shall be sufficiently given (unless otherwise expressly provided herein) by giving notice to such
Holders (a) by publication of such notice at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, and (b) by mailing such notice to the Holders of Unregistered
Securities who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act at such addresses as were so furnished to the Trustee.
In any case where notice to such 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
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sufficiency of such notice with respect to other Holders. 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 case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer when such notice is required to the given pursuant to
any provision of this Indenture, then any manner of giving such notice as shall be reasonably
satisfactory 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 Issuer to the Trustee to take any action under any
of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers
Certificate stating that all conditions precedent 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 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.
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,
(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 opinion 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 an officer of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows 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 Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, 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 Issuer 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 Issuer, unless such
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officer or counsel, as the case may be, knows that the certificate or opinion of 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 care 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. If the date of maturity of
interest on or principal of the Securities of any series or any Coupons appertaining thereto or the
date fixed for redemption or repayment of any such Security or Coupon 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 duties imposed by,
or with another provision (an incorporated provision) included in this Indenture by operation of
Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or incorporated
provision shall control.
SECTION 11.8. NEW YORK LAW TO GOVERN; WAIVER OF JURY TRIAL. THIS INDENTURE AND EACH SECURITY
AND COUPON SHALL BE DEEMED TO BE A CONTRACT 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, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(b).
EACH OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 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. The exchange of copies of this Indenture and of signature pages by facsimile or
PDF transmission shall constitute effective execution and delivery of this Indenture as to the
parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of
the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures
for all purposes.
SECTION 11.10. EFFECT OF HEADINGS. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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SECTION 11.11. SECURITIES IN A FOREIGN CURRENCY. Unless otherwise specified in an Officers
Certificate delivered pursuant to Section 2.3 of this Indenture with respect to a particular series
of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all series or all series
affected by a particular action at the time Outstanding and, at such time, there are Outstanding
Securities of any series which are denominated in a Foreign Currency, then the principal amount of
Securities of such series which shall be deemed to be Outstanding for the purpose of taking such
action shall be that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate in The City of New York for cable transfers of such currency or currencies as published
by the Federal Reserve Bank of New York as of the most recent available date. If such Market
Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the Federal Reserve
Bank of New York or quotations from one or more major banks in The City of New York or in the
country of issue of the currency in question, which for purposes of the euro shall be any member
state of the European Union that has adopted the euro, as the Trustee shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a series denominated in a currency other than Dollars in connection with any
action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 11.12. JUDGMENT CURRENCY. The Issuer agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or interest on the
Securities of any series (the Required Currency) into a currency in which a judgment will be
rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which final unappealable
judgment is entered and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so expressed to be payable and
(iii) shall not be affected by judgment
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being obtained for any other sum due under this Indenture. For purposes of the foregoing,
New York Banking Day means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are authorized or required
by law or executive order to close.
SECTION 11.13. FORCE MAJEURE. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
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 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. NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of redemption to the Holders
of Registered Securities of any series to be redeemed as a whole or in part at the option of the
Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid, 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 at their last addresses as they shall appear upon the registry books.
Notice of redemption to the Holders of Unregistered Securities to be redeemed as a whole or in
part, who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of
the Trust Indenture Act shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 prior to the date fixed for redemption, to
such Holders at such addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Issuer, the Trustee shall make such information available to the Issuer for
such purpose). Notice of redemption to all other Holders of Unregistered Securities shall be
published in an Authorized Newspaper in the Borough of Manhattan, The City of New York, in each
case, once in each of three successive calendar weeks, the first publication to be not less than 30
nor more than 60 days prior to the date fixed for redemption. 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 such Security of such series.
The notice of redemption to each such Holder shall identify the Securities to be redeemed
(including CUSIP number(s)) and specify the aggregate principal amount of Securities of such
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series to be redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of such Securities
and, in the case of Securities with Coupons attached thereto, of all Coupons appertaining thereto
maturing after the date fixed for redemption, 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. In case any Security of a
series is to be redeemed in part only, the notice of redemption to Holders of Securities of the
series 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
Issuer shall be given by the Issuer or, at the Issuers request, by the Trustee in the name and at
the expense of the Issuer.
On or before 11:00 a.m., New York City time, on the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one
or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate
and hold in trust as provided in Section 3.4) 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. The Issuer will
deliver to the Trustee at least 20 days prior to the date fixed for redemption, or such shorter
period as shall be acceptable to the Trustee, an Officers Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the election of the
Issuer prior to the expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the Trustee shall select, in
such manner as it shall be deemed appropriate and fair, in its sole discretion, Securities of such
series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal
to the minimum authorized denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly notify the Issuer 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. 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.
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 Issuer shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the
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Securities or portions of Securities so called for redemption shall cease to accrue, and the
unmatured Coupons, if any, appertaining thereto shall be void, and, except as provided in Sections
6.5 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, together with all Coupons, if any, appertaining
thereto maturing after the date fixed for redemption, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer 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 in the case of
Securities with Coupons attached thereto, to the Holders of the Coupons for such interest upon
surrender thereof, and in the case of Registered Securities, to the Holder of such Registered
Securities registered as such on the relevant record date, subject to the terms and provisions of
Section 2.3 and 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 of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant Coupons maturing after the date fixed for redemption, the surrender
of such missing Coupon or Coupons may be waived by the Issuer and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of
the Issuer, a new Security or Securities of such series, 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 an Officers Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be given as being owned of
record and beneficially by, and not pledged or hypothecated by, either (a) the Issuer 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 Issuer.
SECTION 12.5. MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount of any sinking fund
payment provided for by the terms of the 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 the 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
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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 Issuer 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 Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the
Issuer 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
Issuer through any optional redemption provision 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 60th day next preceding each sinking fund payment date for any series, the
Issuer will deliver to the Trustee an Officers Certificate (which need not contain the statements
required by Section 11.5) (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series
and the basis for such credit, (b) stating that none of the Securities of such series 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 and (d) stating whether or not the Issuer 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 Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer 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 Officers Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers Certificate shall be irrevocable and upon
its receipt by the Trustee, the Issuer 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 Issuer, on or before any such 60th day, to deliver such Officers
Certificate 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 Issuer (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 Issuer 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 sinking fund
payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign Currency) if the Issuer shall so
request 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
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the date fixed for redemption. If such amount shall be $50,000 (or the equivalent thereof in
any Foreign Currency) or less and the Issuer makes no such request then it shall be carried over
until a sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency) is available.
The Trustee shall select, in the manner provided in Section 12.2, 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, and shall (if requested in writing by the Issuer) inform the Issuer of the
serial numbers of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of record and beneficially by, and
not pledged or hypothecated by, either (a) the Issuer or (b) an entity specifically identified in
such Officers Certificate as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request 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 in part at the option of the Issuer. 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.
On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or
shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or give 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 giving 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 Issuer 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
Five and held for the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and
attested as of the date first written above.
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CVR ENERGY, INC.
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By: |
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Name: |
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Title: |
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WELLS FARGO BANK, N.A., as Trustee
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By: |
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Name: |
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Title: |
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EX-4.3
Exhibit 4.3
CVR Energy, Inc.
and
Wells Fargo Bank, N.A., as Trustee
Indenture
Dated as
of ___________ , _____
Subordinated Debt Securities
CROSS REFERENCE SHEET*
Between
Provisions
of Trust Indenture Act (as defined herein) and Indenture, dated as of
____________ , _____, between CVR ENERGY, INC. and WELLS FARGO BANK, N.A., as Trustee:
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SECTION OF THE ACT |
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SECTION OF INDENTURE |
310(a)(1) and (2)
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6.9 |
310(a)(3) and (4)
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Inapplicable |
310(b)
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6.8, 6.10(a), (b) and (d) |
310(c)
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Inapplicable |
311(a)
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6.13 |
311(b)
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6.13 |
311(c)
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Inapplicable |
312(a)
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4.1 and 4.2 |
312(b)
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4.2 |
312(c)
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4.2 |
313(a)
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4.3 |
313(b)(1)
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Inapplicable |
313(b)(2)
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4.3 |
313(c)
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4.3, 5.11, 6.10, 6.11, 8.2 and 12.2 |
313(d)
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4.3 |
314(a)
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3.5 and 4.2 |
314(b)
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Inapplicable |
314(c)(1) and (2)
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11.5 |
314(c)(3)
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Inapplicable |
314(d)
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Inapplicable |
314(e)
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11.5 |
314(f)
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Inapplicable |
315(a), (c) and (d)
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6.1 |
315(b)
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5.11 |
315(e)
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5.12 |
316(a)(1)
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5.9 and 5.10 |
316(a)(2)
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Not required |
316(a) (last sentence)
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7.4 |
316(b)
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5.7 |
317(a)
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5.2 |
317(b)
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3.4(a) and (b) |
318(a)
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11.7 |
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* |
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This Cross Reference Sheet is not part of the Indenture. |
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS |
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1 |
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SECTION 1.1. CERTAIN TERMS DEFINED |
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1 |
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ARTICLE II SECURITIES |
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6 |
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SECTION 2.1. FORMS GENERALLY |
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6 |
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SECTION 2.2. FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION |
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7 |
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SECTION 2.3. AMOUNT UNLIMITED; ISSUABLE IN SERIES |
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7 |
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SECTION 2.4. AUTHENTICATION AND DELIVERY OF SECURITIES |
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10 |
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SECTION 2.5. EXECUTION OF SECURITIES |
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12 |
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SECTION 2.6. CERTIFICATE OF AUTHENTICATION |
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12 |
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SECTION 2.7. DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST |
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13 |
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SECTION 2.8. REGISTRATION, TRANSFER AND EXCHANGE |
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13 |
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SECTION 2.9. MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES |
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17 |
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SECTION 2.10. CANCELLATION OF SECURITIES; DESTRUCTION THEREOF |
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18 |
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SECTION 2.11. TEMPORARY SECURITIES |
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18 |
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SECTION 2.12. CUSIP NUMBERS |
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19 |
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ARTICLE III COVENANTS OF THE ISSUER |
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19 |
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SECTION 3.1. PAYMENT OF PRINCIPAL AND INTEREST |
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19 |
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SECTION 3.2. OFFICES FOR PAYMENTS, ETC |
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20 |
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SECTION 3.3. APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE |
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20 |
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SECTION 3.4. PAYING AGENTS |
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20 |
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SECTION 3.5. COMPLIANCE CERTIFICATES |
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21 |
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SECTION 3.6. CORPORATE EXISTENCE |
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21 |
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ARTICLE IV SECURITYHOLDER LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE |
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22 |
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SECTION 4.1. ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF
SECURITYHOLDERS |
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22 |
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SECTION 4.2. REPORTS BY THE ISSUER |
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22 |
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SECTION 4.3. REPORTS BY THE TRUSTEE |
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22 |
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ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
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23 |
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SECTION 5.1. EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER OF DEFAULT |
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23 |
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SECTION 5.2. COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT |
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25 |
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SECTION 5.3. APPLICATION OF PROCEEDS |
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27 |
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SECTION 5.4. SUITS FOR ENFORCEMENT |
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28 |
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SECTION 5.5. RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS |
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28 |
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SECTION 5.6. LIMITATIONS ON SUITS BY SECURITY HOLDERS |
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28 |
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SECTION 5.7. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS |
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29 |
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SECTION 5.8. POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF
DEFAULT |
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29 |
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SECTION 5.9. CONTROL BY HOLDERS OF SECURITIES |
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30 |
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SECTION 5.10. WAIVER OF PAST DEFAULTS |
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30 |
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SECTION 5.11. TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN
CIRCUMSTANCES |
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30 |
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SECTION 5.12. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS |
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31 |
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ARTICLE VI CONCERNING THE TRUSTEE |
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31 |
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SECTION 6.1. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO
DEFAULT |
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SECTION 6.2. CERTAIN RIGHTS OF THE TRUSTEE |
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32 |
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SECTION 6.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR
APPLICATION OF PROCEEDS THEREOF |
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34 |
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SECTION 6.4. TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS, ETC |
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34 |
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SECTION 6.5. MONEYS HELD BY TRUSTEE |
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34 |
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SECTION 6.6. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM |
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34 |
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SECTION 6.7. RIGHT OF TRUSTEE TO RELY ON OFFICERS CERTIFICATE, ETC |
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35 |
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SECTION 6.8. QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS |
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35 |
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SECTION 6.9. PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE |
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35 |
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SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE |
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36 |
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SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE |
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37 |
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SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
TRUSTEE |
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38 |
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SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER |
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39 |
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SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT |
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39 |
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ARTICLE VII CONCERNING THE SECURITYHOLDERS |
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40 |
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SECTION 7.1. EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS |
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40 |
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SECTION 7.2. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES |
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40 |
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SECTION 7.3. HOLDERS TO BE TREATED AS OWNERS |
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40 |
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SECTION 7.4. SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING |
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41 |
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SECTION 7.5. RIGHT OF REVOCATION OF ACTION TAKEN |
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41 |
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ARTICLE VIII SUPPLEMENTAL INDENTURES |
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42 |
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SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS |
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42 |
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SECTION 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS |
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43 |
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SECTION 8.3. EFFECT OF SUPPLEMENTAL INDENTURE |
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45 |
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SECTION 8.4. DOCUMENTS TO BE GIVEN TO TRUSTEE |
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45 |
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SECTION 8.5. NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES |
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45 |
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ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
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45 |
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SECTION 9.1. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS |
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45 |
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SECTION 9.2. SUCCESSOR SUBSTITUTED |
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46 |
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SECTION 9.3. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE |
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46 |
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ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
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46 |
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SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE |
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46 |
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SECTION 10.2. APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES |
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49 |
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SECTION 10.3. REPAYMENT OF MONEYS HELD BY PAYING AGENT |
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50 |
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SECTION 10.4. RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO
YEARS |
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50 |
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SECTION 10.5. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS |
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50 |
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SECTION 10.6. EFFECT ON SUBORDINATION PROVISIONS |
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50 |
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ARTICLE XI MISCELLANEOUS PROVISIONS |
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51 |
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SECTION 11.1. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER EXEMPT
FROM INDIVIDUAL LIABILITY |
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51 |
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SECTION 11.2. PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS
OF SECURITIES AND COUPONS |
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51 |
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SECTION 11.3. SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE |
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51 |
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SECTION 11.4. NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES AND
COUPONS |
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51 |
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SECTION 11.5. OFFICERS CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE
CONTAINED THEREIN |
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52 |
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SECTION 11.6. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS |
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53 |
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SECTION 11.7. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT |
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53 |
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SECTION 11.8. NEW YORK LAW TO GOVERN; WAIVER OF JURY TRIAL |
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54 |
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SECTION 11.9. COUNTERPARTS |
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54 |
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SECTION 11.10. EFFECT OF HEADINGS |
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54 |
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SECTION 11.11. SECURITIES IN A FOREIGN CURRENCY |
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54 |
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SECTION 11.12. JUDGMENT CURRENCY |
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55 |
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SECTION 11.13. AGREEMENT TO SUBORDINATE |
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55 |
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SECTION 11.14. FORCE MAJEURE |
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55 |
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ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS |
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56 |
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SECTION 12.1. APPLICABILITY OF ARTICLE |
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56 |
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SECTION 12.2. NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS |
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56 |
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SECTION 12.3. PAYMENT OF SECURITIES CALLED FOR REDEMPTION |
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57 |
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SECTION 12.4. EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR
REDEMPTION |
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58 |
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SECTION 12.5. MANDATORY AND OPTIONAL SINKING FUNDS |
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58 |
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-iv-
THIS
INDENTURE, dated as of ____________ , _____, by and between CVR ENERGY, INC., a Delaware
corporation (the Issuer), and WELLS FARGO BANK, N.A., a national banking association, as trustee
(the Trustee),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of its debentures, notes
or other evidences of subordinated indebtedness to be issued in one or more series (the
Securities) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
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,
the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities and of the coupons, if any, appertaining
thereto 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 (the Trust Indenture Act), or the definitions of which in the Securities Act of 1933, as
amended (the Securities Act), are referred to in the Trust Indenture Act, including terms defined
therein by reference to the Securities Act (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meaning assigned to such terms in the Trust
Indenture Act and in the Securities Act as in effect from time to time. 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 unless a
different time shall be specified with respect to such series of Securities as provided for in
Section 2.3. The words herein, hereof and hereunder and other words of similar import refer
to this Indenture as a whole 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.
Affiliate has the same meaning as given to that term in Rule 405 of the Securities Act or
any successor provision.
Authenticating Agent shall have the meaning set forth in Section 6.14.
Authorized Newspaper means a newspaper of general circulation in The City of New York and
will be, if practicable, The Wall Street Journal (Eastern Edition). If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or given with the approval
of the Trustee shall constitute a sufficient publication of such notice.
Board of Directors means either the Board of Directors of the Issuer or any committee of
such Board duly authorized to act on its behalf.
Board Resolution means a copy of one or more resolutions, certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted or consented to by the Board of
Directors and to be in full force and effect, and delivered to the Trustee.
Business Day means, with respect to any Security, a day that is not a day on which banking
institutions in the city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, are authorized or required by any applicable law or
regulation to be closed.
Capital Stock means, with respect to any corporation, any and all shares, interests, rights
to purchase (other than convertible or exchangeable indebtedness that is not itself otherwise
capital stock), warrants, options, participations or other equivalents of or interests (however
designated) in stock issued by that corporation.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, 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 it under the
Trust Indenture Act, then the body performing such duties on such date.
Corporate Trust Office means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered, which office is, as of
the date of this Indenture, located at 45 Broadway, 14th Floor, New York, NY 10006,
Attention: Corporate Trust Services.
Coupon means any interest coupon appertaining to an Unregistered Security.
Covenant Defeasance shall have the meaning set forth in Section 10.1(C).
Depositary means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer
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
-2-
Person, Depositary as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Global Securities of that series.
Dollar or $ means the coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Equity Interests means Capital Stock or partnership, participation or membership interests
and all warrants, options or other rights to acquire Capital Stock or partnership, participation or
membership interests (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock or partnership, participation or membership interests).
Event of Default means any event or condition specified as such in Section 5.1.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Fair Value when used with respect to any Voting Equity Interests of the Issuer means the
fair value as determined in good faith by the Board of Directors of the Issuer.
Foreign Currency means any coin, currency, currency unit or composite currency, including,
without limitation, the euro, issued by the government of one or more countries, other than the
United States of America or by any internationally recognized union, confederation or association
of such governments.
Holder, Holder of Securities, Securityholder or any other similar terms mean (a) in the
case of any Registered Security, the person in whose name such Security is registered in the
security register kept by the Issuer for that purpose in accordance with the terms hereof, and (b)
in the case of any Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
Indenture means this instrument as originally executed and delivered or, if 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 hereunder, provided, that,
if at any time more than one Person is acting as Trustee under this instrument, Indenture shall
mean, with respect to one or more series of Securities for which such person is trustee, this
instrument as originally executed and delivered or, if amended or supplemented as herein provided,
as so amended or supplemented or both, and shall include the forms and terms of those particular
series of Securities for which such Person is Trustee established as contemplated hereunder,
exclusive, however, of any provisions or terms which relate solely to other series of Securities
for which such person is not Trustee, regardless of when such terms or provisions were adopted.
IRS means the Internal Revenue Service of the United States Department of the Treasury, or
any successor entity.
Issuer means (except as otherwise provided in Article IX) CVR Energy, Inc., a Delaware
corporation, and, subject to Article IX, its successors and assigns.
-3-
Issuer Order means a written statement, request or order of the Issuer signed in its name by
the chairman of the Board of Directors, chief executive officer, president, any vice president or
the treasurer of the Issuer.
Judgment Currency has the meaning set forth in Section 11.12.
Non-U.S. Person means any person that is not a U.S. person as such term is defined in Rule
902 of the Securities Act.
Officers Certificate means a certificate signed by the chairman of the Board of Directors,
chief executive officer, president or any vice president or the treasurer of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act and include the statements provided for in Section 11.5.
Opinion of Counsel means an opinion in writing signed by legal counsel who may be an
employee of the Issuer or other counsel reasonably satisfactory to the Trustee. Each such opinion
shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in
Section 11.5.
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.
Original Issue 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.
Outstanding (except as otherwise provided in Section 7.4), when used with reference to
Securities, means, subject to the provisions of Section 7.4, as of any particular time, all
Securities authenticated and delivered by the Trustee 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 or U.S.
Government Obligations (as provided for in Section 10.1) in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if
the Issuer shall act as its own paying agent), provided, that if such Securities, or portions
thereof, are to be redeemed prior to the maturity thereof, written notice of such redemption shall
have been given as herein provided, or provisions satisfactory to the Trustee shall have been made
for giving such written notice; and
(c) Securities which shall have been paid or in substitution for which other Securities shall
have been authenticated and delivered pursuant to the terms of Section 2.9 (except with respect to
any such Security as to which proof satisfactory to the Trustee is
-4-
presented that such Security is held by a person in whose hands such Security is a legal,
valid and binding obligation of the Issuer).
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 an Original Issue 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.
Periodic Offering means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such
Securities.
Person means any individual, corporation, business trust, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
principal whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include and premium, if any, provided, however, that such inclusion
of premium, if any, shall under no circumstances result in the double counting of such premium for
the purpose of any calculation required hereunder.
record date shall have the meaning set forth in Section 2.7.
Registered 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 and any other legend required by the Depositary for
such series.
Registered Security means any Security registered on the Security register of the Issuer.
Required Currency shall have the meaning set forth in Section 11.12.
Responsible Officer when used with respect to the Trustee means any trust officer or
assistant trust officer, or any other 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 because of his or her knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the administration of this
Indenture.
Security or Securities (except as otherwise provided in Section 7.4) has the meaning
stated in the first recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
-5-
Securities Act means the Securities Act of 1933, as amended.
Senior Indebtedness, when used with respect to the Securities of any series, shall have the
meaning established pursuant to Subsection
2.3(9) with respect to the Securities of such series.
Subordination Provisions, when used with respect to the Securities of any series, shall have
the meaning established pursuant to Subsection 2.3(9) with respect to the Securities of such
series.
Subsidiary, with respect to any Person, means (i) a corporation a majority of whose Voting
Equity Interests is at the time, directly or indirectly, owned by such Person, by such Person and
one or more Subsidiaries of such Person or by one or more Subsidiaries of such Person, (ii) any
other Person (other than a corporation) in which such Person, one or more Subsidiaries of such
Person, or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the
date of determination thereof has at least majority ownership interest, or (iii) a partnership in
which such Person or a Subsidiary of such Person is, at the time, a general partner.
Trustee means the Person identified as Trustee in the first paragraph hereof and, subject
to the provisions of Article VI, shall also include any successor trustee. Trustee shall also
mean or include each Person who is then a trustee hereunder, and, if at any time there is more than
one such Person, Trustee as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
Unregistered Security means any Security other than a Registered Security.
U.S. Government Obligations shall have the meaning set forth in Section 10.1(A).
Voting Equity Interests means Equity Interests which at the time are entitled to vote in the
election of, as applicable, directors, members or partners generally; provided, that, for the
purposes hereof, Equity Interests that carry only the right to vote conditionally on the happening
of an event shall not be considered Voting Equity Interests whether or not such event shall have
happened.
Yield to Maturity means the yield to maturity on a series of securities, calculated at the
time of issuance of such series, or, if applicable, at the most recent redetermination of interest
on such series, and calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
SECTION 2.1. FORMS GENERALLY. The Securities of each series and the Coupons, if any, to be
attached thereto shall be substantially in such form as
shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to but not
-6-
set forth in a Board Resolution, an Officers Certificate detailing such establishment) 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 and
may have imprinted or otherwise reproduced thereon such legend or legends or endorsements as may be
required to comply with any 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 and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, 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 and Coupons, if any, as evidenced by their execution of such Securities
and Coupons, if any.
SECTION 2.2. FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION. The Trustees certificate of
authentication on all Securities shall be in substantially the following form:
This is one of the Securities referred to in the within-mentioned Indenture.
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WELLS FARGO BANK, N.A., as Trustee |
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By |
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Authorized Signatory
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If at any time there shall be an Authenticating Agent appointed with respect to any series of
Securities, then the Trustees Certificate of Authentication to be borne by the Securities of each
such series shall be substantially as follows:
This is one of the Securities referred to in the within-mentioned Indenture.
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as Authenticating Agent
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By |
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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. There shall be established in or pursuant
to one or more Board Resolutions (and to the extent established pursuant to but not set forth in a
Board Resolution, in an Officers Certificate detailing such establishment) or
-7-
established in one or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series,
(1) the designation of the Securities of the series, which shall distinguish the Securities of
the series from the Securities of all other series, and which may be part of a series of Securities
previously issued;
(2) 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 Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the Foreign Currency or Foreign Currencies in which the Securities
of the series are denominated;
(4) the date or dates on which the principal of the Securities of the series is payable or the
method of determination thereof;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, on which such interest shall be payable, the
terms and conditions of any deferral of interest and the additional interest, if any, thereon, the
right, if any, of the Issuer to extend the interest payment periods and the duration of the
extensions and (in the case of Registered Securities) the date or dates on which a record shall be
taken for the determination of Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
(6) the place or places where and the manner in which, the principal of and any interest on
Securities of the series shall be payable, if other than as provided in Section 3.2;
(7) the right, if any, of the Issuer to redeem Securities, in whole or in part, at its option
and the period or periods within which, or the date or dates on which, the price or prices at which
and any terms and conditions upon which Securities of the series may be so redeemed, pursuant to
any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the
series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option
of a Holder thereof and the price or prices at which and the period or periods within which or the
date or dates on which, and any terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(9) the terms pursuant to which the Securities of such series will be made subordinate in
right of payment to Senior Indebtedness and the definition of such Senior Indebtedness with respect
to such series; and such Board Resolution, Officers Certificate or supplemental indenture, as the
case may be, establishing the terms of such series shall expressly state which articles, sections
or other provisions thereof constitute the Subordination Provisions with respect to the
Securities of such series;
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(10) if other than denominations of $1,000 and any integral multiple thereof in the case of
Registered Securities, or $1,000 and $5,000 in the case of Unregistered Securities, the
denominations in which Securities of the series shall be issuable;
(11) the percentage of the principal amount at which the Securities will be issued, and, 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 thereof and the
terms and conditions of any acceleration;
(12) if other than the coin, currency or currencies in which the Securities of the series are
denominated, the coin, currency or currencies in which payment of the principal of or interest on
the Securities of such series shall be payable, including composite currencies or currency units;
(13) if the principal of or interest on the Securities of the series are to be payable, at the
election of the Issuer 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;
(14) if the amount of payments of principal of and interest on the Securities of the series
may be determined with reference to an index or formula based on a coin, currency, composite
currency or currency unit other than that in which the Securities of the series are denominated,
the manner in which such amounts shall be determined;
(15) whether the Securities of the series will be issuable as Registered Securities (and if
so, whether such Securities will be issuable as Registered Global Securities) or Unregistered
Securities (with or without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the payment of interest
thereon and, if other than as provided in Section 2.8, the terms upon which Unregistered Securities
of any series may be exchanged for Registered Securities of such series and vice versa;
(16) whether and under what circumstances the Issuer 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 Issuer will have the
option to redeem the Securities of the series rather than pay such additional amounts;
(17) if the Securities of the 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;
(18) any trustees, depositaries, authenticating or paying agents, transfer agents or
registrars of any other agents with respect to the Securities of such series;
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(19) any deletion from, modification of or addition to the definitions, Events of Default,
defeasance provisions, covenants or other provisions with respect to the Securities of such series;
(20) if the Securities of the series are to be convertible into or exchangeable for any other
security or property of the Issuer, including, without limitation, securities of another Person
held by the Issuer or its Affiliates and, if so, the terms thereof;
(21) if the Securities of the series are to be secured by any assets or properties of the
Issuer or any of its Affiliates;
(22) if the Securities are to be guaranteed by any other entities; and
(23) any other terms of the series.
All Securities of any one series and Coupons, if any, appertaining thereto shall be
substantially identical, except in the case of Registered Securities as to denomination and except
as may otherwise be provided by or pursuant to the Board Resolution or Officers Certificate
referred to above or as set forth in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from time to time without consent of
any Holder, consistent with the terms of this Indenture, if so provided by or pursuant to such
Board Resolution, such Officers Certificate or in any indenture supplemental hereto.
SECTION 2.4. AUTHENTICATION AND DELIVERY OF SECURITIES. The Issuer may deliver Securities of
any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the
Trustee for authentication together with the applicable documents referred to below in this Section
2.4, and the Trustee shall thereupon authenticate and deliver such Securities and Coupons, if any,
to or upon the order of the Issuer (contained in the Issuer Order referred to below in this
Section) or pursuant to such procedures reasonably acceptable to the Trustee and to such recipients
as may be specified from time to time by an Issuer Order. The maturity date, original issue date,
interest rate and any other terms of the Securities of such series and Coupons, if any,
appertaining thereto shall be determined by or pursuant to such Issuer Order and procedures. If
provided for in such procedures, such Issuer Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents,
which instructions, if oral, shall be promptly confirmed in writing. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4)
below only at or before the time of the first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 6.1) shall be fully protected in conclusively
relying upon, the following enumerated documents unless and until such documents have been
superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery instructions if
the Securities and Coupons, if any, are not to be delivered to the Issuer, provided that, with
respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver
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Securities of such series for original issue from time to time, in an aggregate principal
amount not exceeding the aggregate principal amount established for such series, pursuant to an
Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to
time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest
rate or rates and any other terms of Securities of such series shall be determined by an Issuer
Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order
may authorize authentication and delivery pursuant to oral or electronic instructions from the
Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly
confirmed in writing;
(2) any Board Resolution, Officers Certificate and/or executed supplemental indenture
referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities
and Coupons, if any, were established;
(3) an Officers Certificate stating that all conditions precedent to the issuance and
authorization of the Securities have been complied with; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter addressed
to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the
effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and
established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been duly authorized and established in conformity
with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the
Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Issuer, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors rights and to general equity
principles;
(d) that the execution and delivery by the Issuer of such Securities does not conflict with
the applicable United States or New York law; and
(e) all conditions precedent to the issuance and authorization of the Securities have been
complied with.
Any counsel may state that such opinions are limited to matters arising under the laws of the
State of New York and the General Corporation Law of the State of Delaware. Such counsel may rely
upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably
satisfactory to the Trustee, in which case the opinion shall state that such counsel believes he
and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion
involves factual matters, he has relied, to the extent he deems proper, upon certificates of
officers of the Issuer and its subsidiaries and certificates of public officials.
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The Trustee shall have the right to decline to authenticate and deliver any Securities under
this section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors or trustees shall determine that
such action would expose the Trustee to personal liability to existing Holders or would affect the
Trustees own rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to
be issued in the form of one or more Registered Global Securities, then the Issuer shall execute
and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such
series, authenticate and deliver one or more Registered 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 Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or delivered or held pursuant to such
Depositarys 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 Exchange Act and
any other applicable statute or regulation.
SECTION 2.5. EXECUTION OF SECURITIES. The Securities and each Coupon appertaining thereto, if
any, shall be signed on behalf of the Issuer by the chairman of its Board of Directors or its
president, or any executive officer, a vice president or its secretary. Such signatures may be the
manual or facsimile signatures of the present or any future such officers. The seal of the Issuer
may but need not be included or the Security affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in 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 Issuer who shall have signed any of the Securities or Coupons, if
any, shall cease to be such officer before the Security or Coupon so signed (or the Security to
which the Coupon so signed appertains) shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security or Coupon nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Security or Coupon had not ceased to be such
officer of the Issuer; and any Security or Coupon may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security or Coupon, shall be the proper
officers of the Issuer, 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
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shall bear thereon a certificate of authentication substantially in the form hereinbefore
recited, 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. No
Coupon shall be entitled to the benefits of this Indenture or shall be valid and obligatory for any
purpose until the certificate of authentication on the Security to which such Coupon appertains
shall have been duly executed by the Trustee. The execution of such certificate by the Trustee
upon any Security executed by the Issuer 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.
SECTION 2.7. DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST. The Securities of each
series shall be issuable as Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.3 or, with respect to the Registered Securities of any
series, if not so established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established, such Securities
shall be issuable in denominations of $1,000 and $5,000. 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 Issuer executing the same may determine with the approval of the Trustee, as
evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication. Each Unregistered
Security shall be dated as provided in the Board Resolution referred to in Section 2.3. 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.
The person in whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest payment date for such series, in which
case such defaulted interest shall be paid to the persons in whose names Outstanding Registered
Securities for such series are registered at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to the Holders of
Registered Securities not less than 15 days preceding such subsequent record date. The term
record date as used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date specified as such in the
terms of the Registered Securities of such series established as contemplated by Section 2.3, or,
if no such date is so established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month, whether or not such record
date is a Business Day.
SECTION 2.8. REGISTRATION, TRANSFER AND EXCHANGE. (a) The Issuer
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will keep 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 in which, subject to such reasonable
regulations as the Issuer may prescribe, it will provide for the registration of Registered
Securities of such series and the registration of transfer of Registered Securities of such series.
Such register shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered Security of any series at
any such office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer
shall execute and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same series, maturity date,
interest rate and original issue date in authorized denominations for a like aggregate principal
amount.
Unregistered Securities (except for any temporary global Unregistered Securities) and Coupons
(except for Coupons attached to any temporary global Unregistered Securities) shall be transferable
by delivery.
At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2 and upon payment,
if the Issuer shall so require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, at the option of the Holder thereof,
except as otherwise specified pursuant to Section 2.3, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.2,
with, in the case of Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered
Securities of any series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for
such purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. Registered Securities of any series may not be exchanged for
Unregistered Securities of such series unless (1) otherwise specified pursuant to Section 2.3 and
(2) the Issuer has delivered to the Trustee an Opinion of Counsel that (x) the Issuer has received
from the IRS a ruling or (y) since the date hereof, there has been a change in the applicable
United States Federal income tax law, in either
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case to the effect that the inclusion of terms permitting Registered Securities to be
exchanged for Unregistered Securities would result in no United States Federal income tax effect
adverse to the Issuer or to any Holder. Whenever any Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive. All Securities and Coupons, if any, surrendered
upon any exchange or transfer provided for in this Indenture shall be promptly cancelled and
disposed of by the Trustee in accordance with its regular procedures, and the Trustee shall deliver
a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer, exchange, redemption or
payment shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed, by the Holder or his attorney duly authorized in writing.
The Issuer or the registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any exchange or registration of transfer
of Securities. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of (a) any Securities of
any series for a period of 15 days preceding the first mailing of notice of redemption of
Securities of such series to be redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may 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 Registered Securities of a series represented by one or
more Registered Global Securities notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall appoint a successor
Depositary eligible under Section 2.4 with respect to such Registered Securities. If a successor
Depositary eligible under Section 2.4 for such Registered Securities is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the
Issuers election pursuant to Section 2.3 that such Registered Securities be represented by one or
more Registered Global Securities shall no longer be effective and the Issuer 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 without coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities
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representing such Registered Securities in exchange for such Registered Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that the Registered Securities
of any series issued in the form of one or more Registered Global Securities shall no longer be
represented by a Registered Global Security or Securities. In such event the Issuer will execute,
and the Trustee, upon receipt of any 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 without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such Registered Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to Securities represented by a
Registered Global Security, the Depositary for such Registered Global Security may surrender such
Registered 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 Issuer and such Depositary.
Thereupon, the Issuer shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(i) to the Person specified by such Depositary a new Registered 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 Persons beneficial interest in
the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Registered Global
Security and the aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in definitive registered form
without coupons, in authorized denominations, such Registered Global Security shall be cancelled by
the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form
without coupons issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer 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.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations
of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of Securities to the contrary,
none of the Issuer, the Trustee or any agent of the Issuer or the Trustee (any of which, other than
the Issuer, shall conclusively rely on an Officers Certificate and an Opinion of
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Counsel) shall be required to exchange any Unregistered Security for a Registered Security if
such exchange would result in United States Federal income tax consequences adverse to the Issuer
(such as, for example, the inability of the Issuer to deduct from its income, as computed for
United States Federal income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws. The Trustee shall have no
responsibility for any actions taken or not taken by the Depositary.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers between or among
Depositary participants or beneficial owners of interests in any Registered Global Security) other
than to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the express requirements
hereof.
SECTION 2.9. MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES. In case any temporary
or definitive Security or any Coupon appertaining to any Security shall be mutilated, defaced,
destroyed, lost or stolen, the Issuer in its discretion may execute and, upon the written request
of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of the
same series, maturity date, interest rate and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution for the Security to
which such mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or stolen.
In every case, the applicant for a substitute Security or Coupon shall furnish to the Issuer and
to the Trustee and any agent of the Issuer 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 or Coupon and of the ownership thereof, and in the case of mutilation or defacement
shall surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer or the registrar 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 or Coupon 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 Issuer may, instead of issuing a substitute Security, pay or authorize the
payment of the same or the relevant Coupon (without surrender thereof except in the case of a
mutilated or defaced Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer 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 Issuer and the Trustee and any
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agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or
theft of such Security or Coupons and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the provisions of this
Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost
or stolen Security or Coupon 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 or Coupons of such series
duly authenticated and delivered hereunder. All Securities and Coupons shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or
stolen Securities and Coupons 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 and Coupons
surrendered for payment, redemption, registration of transfer or exchange, or for credit against
any payment in respect of a sinking or analogous fund, if any, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be delivered to the Trustee
or its agent for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities or Coupons shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee or its agent shall dispose of cancelled Securities and
Coupons held by it in accordance with its regular procedures. If the Issuer or its agent shall
acquire any of the Securities or Coupons, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities or Coupons unless and until the
same are delivered to the Trustee or its agent for cancellation.
SECTION 2.11. TEMPORARY SECURITIES. Pending the preparation of definitive Securities for any
series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities
for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be issuable as Registered
Securities without coupons, or as Unregistered Securities with or without coupons attached thereto,
of 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 Issuer with the concurrence of the Trustee as evidenced
by the execution and authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer 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
Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.2 and, in
the case of Unregistered Securities, at any agency maintained by the Issuer for such purpose as
specified pursuant to
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Section 2.3, and the Trustee shall authenticate and deliver in exchange for such temporary
Securities of such series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered Securities, having attached
thereto any appropriate Coupons. Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as definitive Securities of such series,
unless otherwise established pursuant to Section 2.3. The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary Unregistered Securities
of any series that may be established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency located outside the United States
and the procedures pursuant to which definitive or global Unregistered Securities of such series
would be issued in exchange for such temporary global Unregistered Security).
SECTION 2.12. CUSIP NUMBERS. The Issuer in issuing the Securities may use CUSIP numbers (if
then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption
as a convenience to Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be place only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in
the CUSIP numbers.
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1. PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants and agrees for the
benefit of each series of Securities that it will duly and punctually pay or cause to be paid the
principal of, and interest on, if any, each of the Securities of such series (together with any
additional amounts payable pursuant to the terms of such Securities) at the place or places, at the
respective time or times and in the manner provided in such Securities and in the Coupons, if any,
appertaining thereto and in this Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the terms of such Securities) shall be
payable only upon presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered Security provides
that interest thereon may be paid while such Security is in temporary form, the interest on any
such temporary Unregistered Security (together with any additional amounts payable pursuant to the
terms of such Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such Securities for notation thereon of
the payment of such interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest, if any, on Registered 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 Issuer, 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
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Securities register of the Issuer.
SECTION 3.2. OFFICES FOR PAYMENTS, ETC. So long as any Registered Securities are authorized
for issuance pursuant to this Indenture or are outstanding hereunder, the Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or agency (which may be the office of the
Trustee) where the Registered Securities of each series may be presented for payment, where the
Securities of each series may be presented for exchange as is provided in this Indenture and, if
applicable, pursuant to Section 2.3 and where the Registered Securities of each series may be
presented for registration of transfer as in this Indenture provided.
The Issuer will maintain in the Borough of Manhattan, The City of New York, an office or
agency where notices and demands to or upon the Issuer in respect of the Securities of any series,
the Coupons appertaining thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of each such office or
agency and of any change of location thereof. In case the Issuer shall fail to maintain any agency
required by this Section to be located in the Borough of Manhattan, The City of New York, or shall
fail to give such notice of the location or for any change in the location of any of the above
agencies, presentations and demands may be made and notices may be served at the designated office
of the Trustee.
The Issuer may from time to time designate one or more additional offices or agencies where
the Securities of a series and any Coupons appertaining thereto may be presented for payment, where
the Securities of that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.3 and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may from time to time
rescind any such designation, as the Issuer may deem desirable or expedient; provided, that no such
designation or rescission shall in any manner relieve the Issuer of its obligations to maintain the
agencies provided for in this Section. The Issuer shall give to the Trustee prompt written notice
of any such designation or rescission thereof.
SECTION 3.3. APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The Issuer, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 6.9, a Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4. PAYING AGENTS. Whenever the Issuer 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 agent shall agree with the Trustee, subject
to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the principal
of or interest on the Securities of such series (whether such sums have been paid to it by the
Issuer 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 Coupons appertaining thereto, if any, or of the
Trustee;
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(b) that it will give the Trustee notice of any failure by the Issuer (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; and
(c) that it will pay any such sums so held in trust by it to the Trustee upon the Trustees
written request at any time during the continuance of the failure referred to in the foregoing
clause (b).
The Issuer will, on or prior to each due date of the principal of or interest on the
Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or
interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer 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 or the Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer 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
Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to
one or more or all series of Securities 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 Issuer 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 3.5. COMPLIANCE CERTIFICATES. When any Securities are Outstanding, the Issuer will
furnish to the Trustee on or before March 31 in each year a brief certificate (which need not
comply with Section 11.5) from the principal executive, financial or accounting officer of the
Issuer stating that in the course of the performance by the signer of his or her duties as an
officer of the Issuer he or she would normally have knowledge of any default or non-compliance by
the Issuer in the performance of any covenants or conditions contained in this Indenture, stating
whether or not he or she has knowledge of any such default or non-compliance (without regard to
notice requirements or grace periods) and, if so, describing each such default or non-compliance of
which the signer has knowledge and the nature thereof.
The Issuer shall deliver to the Trustee, as soon as possible after the Issuer becomes aware of
the occurrence of any Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers Certificate setting forth the details of such
Event of Default or default and the action which the Issuer proposes to take with respect thereto.
SECTION 3.6. CORPORATE EXISTENCE. Subject to Article IX, the Issuer will do or cause to be
done all things necessary to preserve and keep in full force and effect its corporate
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existence and the rights (charter and statutory), licenses and franchises of the Issuer and
its Subsidiaries; provided, that the Issuer shall not be required to preserve any such right,
license or franchise, if, in the judgment of the Issuer, the preservation thereof is no longer
desirable in the conduct of the business of the Issuer and its Subsidiaries taken as a whole and
the loss thereof is not disadvantageous in any material respect to the Securityholders.
ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF
SECURITYHOLDERS. If and so long as the Trustee shall not be the Security registrar for the
Securities of any series, the Issuer and any other obligor on the Securities 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 Registered Securities of such series pursuant to Section
312 of the Trust Indenture Act:
(a) semi-annually not more than 5 days after each record date for the payment of interest on
such Registered Securities, as hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.3 for non-interest bearing Registered Securities in each year; and
(b) at such other times as the Trustee may reasonably request in writing, within thirty days
after receipt by the Issuer of any such request as of a date not more than 15 days prior to the
time such information is furnished.
SECTION 4.2. REPORTS BY THE ISSUER. To the extent any Securities are Outstanding, the Issuer
covenants to file with the Trustee copies of the annual reports and of the information, documents,
and other reports that the Issuer may be required to file with the Commission pursuant to Section
314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Issuers compliance with any covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers Certificates).
SECTION 4.3. REPORTS BY THE TRUSTEE
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each May 15 following the date of the initial issuance of
Securities under this Indenture deliver to Holders a brief report, dated as of such May 15, which
complies with the provisions of such Section 313(a).
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(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange, if any, upon which the Securities are listed, with the
Commission and with the Issuer. The Issuer will promptly notify the Trustee in writing when the
Securities are listed on any stock exchange and of any delisting thereof.
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 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):
(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; provided that, a valid extension of an interest payment period by the Issuer in
accordance with the terms of such Securities shall not constitute a failure to pay interest; or
(b) default in the payment of all or any part of the principal or premium (if any) on 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 payment of any sinking fund installment as and when the same shall become
due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Issuer duly to observe or perform any other of the covenants or
agreements on the part of the Issuer in the Securities of such series or contained in this
Indenture (other than a covenant or agreement included in this Indenture solely for the benefit of
a series of Securities other than such series) for a period of 90 days after the date on which
written notice specifying such failure, stating that such notice is a Notice of Default hereunder
and demanding that the Issuer remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to the Issuer and the Trustee by
the holders of at least 25% in aggregate principal amount of the Outstanding Securities of the
series to which such covenant or agreement relates; or
(e) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer for any substantial part of its property
or ordering the winding up or liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
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(f) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the
Issuer or for any substantial part of its or their property, or make any general assignment for the
benefit of creditors; or
(g) any other Event of Default provided in the supplemental indenture or Board Resolution
under which such series of Securities is issued or in the form of Security for such series.
If an Event of Default described in clause (a), (b), (c), (d) or (g) occurs and is continuing,
then, and in each and every such case, except for any series of Securities the principal of which
shall have already become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of each such affected series then Outstanding
hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities
of such series are Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all Securities of such series, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same
shall become immediately due and payable.
If an Event of Default described in clause (e) or (f) above occurs and is continuing, then the
principal amount of all of the Securities then Outstanding, and the interest accrued thereon, if
any, shall become and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
The foregoing provisions are subject to the condition that if, at any time after the principal
(or, if the Securities are Original Issue Discount Securities, such portion of the principal as may
be specified in the terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) 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,
(A) the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay
(i) all matured installments of interest upon all the Securities of such series (or all
the Securities, as the case may be); and
(ii) the principal of any and all Securities of such series (or of all the Securities,
as the case may be) which shall have become due otherwise than by acceleration; and
(iii) interest upon such 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 Original Issue
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Discount Securities) specified in the Securities of such series (or at the respective rates
of interest or Yields to Maturity of all the Securities, as the case may be) to the date of
such payment or deposit; and
(iv) all amounts payable to the Trustee pursuant to Section 6.6; and
(B) all Events of Default under the Indenture, other than the non-payment of the
principal of Securities which shall have become due by acceleration, shall have been
cured, waived or otherwise remedies as provided herein,
then and in every such case the Holders of a majority in aggregate principal amount of all the
Securities of such series voting as a separate class then Outstanding, by written notice to the
Issuer and to the Trustee, may waive all defaults with respect to such series and rescind and
annual 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 Original Issue
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 Original Issue 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 such Original Issue
Discount Securities.
SECTION 5.2. COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT. The Issuer
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 of the Securities of such series or upon
any redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer 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, and such Coupons, for
principal and 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 Original Issue 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, and such other amount due the Trustee under Section 6.6 in respect of
Securities of such series.
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Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on
the Securities of any series to the registered Holders, whether or not the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name as trustee of an express trust, shall be entitled and empowered to institute any
action 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 Issuer or other obligor upon the Securities and collect in the
manner provided by law out of the property of the Issuer or other obligor upon the Securities,
wherever situated, all the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer 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 Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of the 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 Original Issue 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 amounts payable to
the Trustee under Section 6.6) and of the Securityholders allowed in any judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to the creditors or property of the
Issuer or such other obligor; and
(b) unless prohibited by applicable law and regulations, to vote on behalf of the holders of
the Securities of any series in any election of a receiver, assignee, trustee or a standby trustee
in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings,
custodian or other person performing similar functions in respect of any such proceedings; and
(c) 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, or liquidator, custodian or other
similar official performing similar functions in respect of any such proceedings is hereby
authorized by each of the Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
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Securityholders, to pay to the Trustee its costs and expenses of collection and all other
amounts due to it pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for 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, except as aforesaid in clause (b).
All rights of action and of asserting claims under this Indenture, or under any of the
Securities of any series or Coupons appertaining to such Securities, may be enforced by the Trustee
without the possession of any of the Securities of such series or Coupons appertaining to such
Securities or the production thereof in any trial or other proceedings relative thereto, and 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 shall be awarded to the Trustee for ratable
distribution to the Holders of the Securities or Coupons appertaining to such Securities in respect
of which such action was taken, after payment of all sums due to the Trustee under Section 6.6 in
respect of such Securities.
In any proceedings brought by the Trustee (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 or Coupons appertaining to
such Securities in respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities parties to any such
proceedings.
SECTION 5.3. APPLICATION OF PROCEEDS. Any moneys collected by the Trustee pursuant to this
Article in respect of any series shall be applied in the following order at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Securities and Coupons appertaining to such Securities in respect
of which monies 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:
FIRST: To the payment of costs and expenses applicable to such series of Securities in respect
of which monies have been collected, including all amounts due to the Trustee and each predecessor
Trustee pursuant to Section 6.6 in respect to such series of Securities;
SECOND: To the payment of amounts then due and unpaid to the holders of Senior Indebtedness
with respect to such series, to the extent required pursuant to the Subordination Provisions
established with respect to the Securities of such series pursuant to Section 2.3(9).
THIRD: In case the principal of the Securities of such series in respect of which moneys have
been collected shall not have become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of the installments on such
interest, with interest (to the extent that such interest has been collected by the Trustee
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and is permitted by applicable law) upon the overdue installments of interest at the same rate
as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
FOURTH: In case the principal of the Securities of such series in respect of which moneys have
been collected shall have become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such interest has been collected
by the Trustee and is permitted by applicable law) upon the overdue installations of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or Yield to Maturity, without preference or
priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over
principal, or of any installment of interest over any other installment of interest or of any
Security of such series over any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to Maturity; and
FIFTH: To the payment of the remainder, if any, to the Issuer or to such party as a court of
competent jurisdiction shall direct.
SECTION 5.4. 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.
SECTION 5.5. RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In case the Trustee 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,
then and in every such case the Issuer and the Trustee shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.6. LIMITATIONS ON SUITS BY SECURITY HOLDERS. No Holder of any Security of any
series or of any Coupon appertaining thereto 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 or with respect to this Indenture or such Security, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any
other remedy hereunder or thereunder, unless (a) such Holder previously shall have given to a
Responsible Officer of the Trustee written notice of an Event of Default with
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respect to Securities of such series and of the continuance thereof, as hereinbefore provided,
and (b) the Holders of not less than 25% in aggregate principal amount of the Securities of such
affected series then Outstanding (treated as a single class) 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 security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred therein or thereby, and (c) 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 (d) no direction inconsistent with such written request shall have been
given to the Trustee pursuant to Section 5.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security or Coupon with every other taker and Holder
and the Trustee, that no one or more Holders of Securities of any series or Coupons appertaining to
such Securities shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other
such taker or Holder of Securities or Coupons appertaining to such Securities, or to obtain or seek
to obtain priority over or preference to any other such taker or Holder (it being understood that
the Trustee does not have an affirmative duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders) or to enforce any right under this Indenture
or any Security, except in the manner herein provided and for the equal, ratable and common benefit
of all Holders of Securities of the applicable series and Coupons appertaining to such Securities.
For the protection and enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
SECTION 5.7. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS.
Notwithstanding any other provision in this Indenture and any provision of any Security, the right
of any Holder of any Security or Coupon to receive payment of the principal of and interest on such
Security or Coupon on or after the respective due dates expressed in such Security or Coupon or the
applicable redemption dates provided for in such Security, or 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 5.8. POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT. Except
as provided in Section 5.6, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders of Securities or Coupons 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.
No delay or omission of the Trustee or of any Holder of Securities or Coupons 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. Every power and remedy given by this Indenture, any Security or law to
the Trustee or to the Holders of Securities or Coupons may be exercised from
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time to time, and as often as shall be deemed expedient, by the Trustee or, subject to Section
5.6, by the Holders of Securities or Coupons.
SECTION 5.9. CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority in aggregate
principal amount of the Securities of each series affected (with each such series voting 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 (subject to the provisions of Section 6.1) the
Trustee shall have the right to decline to follow any such direction if (a) the Trustee, being
advised by counsel, shall determine that the action or proceeding so directed may not lawfully be
taken; or (b) if the Trustee by its trust committee of directors or Responsible Officers of the
Trustee shall determine in good faith that the action or proceedings so directed would involve the
Trustee in personal liability; or (c) if the Trustee in good faith shall so determine that the
actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to
the interests of Holders of the Securities of all affected series not joining in the giving of said
direction, it being understood that (subject to Section 6.1) the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such direction or directions
by Securityholders.
SECTION 5.10. WAIVER OF PAST DEFAULTS. Prior to the declaration of acceleration of the
maturity of the Securities of any series as provided in Section 5.1, the Holders of a majority in
aggregate principal amount of the Securities of such series at the time Outstanding (voting as a
single class) may on behalf of the Holders of all such Securities waive any past default or Event
of Default described in Section 5.1 and its consequences, except a default in respect of a covenant
or provision hereof which cannot be modified or amended without the consent of the Holder of each
Security affected. In the case of any such waiver, the Issuer, the Trustee and the Holders of all
such Securities shall be restored to their former positions and rights hereunder, respectively, and
such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.11. TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES.
The Trustee shall, within 90 days after the occurrence of a default with respect to the Securities
of any series, give notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders thereof, by
publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York and (ii) to all Holders of Securities of such series in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, unless in each case such defaults shall have been
cured before the mailing or
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publication of such notice (the term default for the purpose of this Section being hereby
defined to mean any event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided, that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the payment of any
installment on such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding
of such notice is in the interests of the Securityholders of such series.
SECTION 5.12. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS. All parties to
this Indenture agree, and each Holder of any Security or Coupon 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 series
holding in the aggregate more than 10% in aggregate principal amount of the Securities of such
series, or to any suit instituted by any 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.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT.
Prior to the occurrence of an Event of Default with respect to the Securities of a particular
series and after the curing or waiving of all Events of Default which may have occurred with
respect to such series, the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to such series of Securities. In case an
Event of Default with respect to the Securities of a series has occurred and has not been cured or
waived, the Trustee shall exercise with respect to such series of Securities such of the rights and
powers vested in it by this Indenture with respect to such series of Securities, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligence or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the Securities of any
series and after the curing or waiving of all such Events of Default with respect to such series
which may have occurred:
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(i) the duties and obligations of the Trustee with respect to the Securities of any
series shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders pursuant to Section 5.9 relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to Section 315 of the
Trust Indenture Act.
SECTION 6.2. CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and subject to the Trust
Indenture Act, and subject to Section 6.1:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, Officers Certificate or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other
paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officers Certificate or Issuer Order (unless other evidence in
respect thereof is specifically prescribed herein or in the terms established in respect of any
series); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
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(c) the Trustee may consult with counsel of its selection, and any advice or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers conferred upon it by
this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless (i) requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of any series then Outstanding or (ii)
otherwise provided in the terms of any series of Securities pursuant to Section 2.3; provided,
that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable security or indemnity satisfactory to it against such
expenses or liabilities as a condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee,
shall be repaid by the Issuer upon demand;
(g) 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 not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact an Event of Default is received by the Trustee at the Corporate Trust Office
and such notice references the Securities, the Issuer or this Indenture;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder;
(j) the Trustee may request that the Issuer deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified
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actions pursuant to this Indenture, which certificate may be signed by any person authorized
to sign an Officers Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded;
(k) in no event shall the Trustee be responsible or liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action; and
(l) the Trustee shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder.
SECTION 6.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR APPLICATION
OF PROCEEDS THEREOF. The recitals contained herein and in the Securities, except the Trustees
certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no representation as
to the validity or sufficiency of this Indenture or of the Securities or Coupons. The Trustee
shall not be accountable for the use or application by the Issuer of any of the Securities or of
the proceeds thereof.
SECTION 6.4. TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS, ETC. The
Trustee or any agent of the Issuer or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it were not the Trustee or
such agent.
SECTION 6.5. MONEYS HELD BY TRUSTEE. Subject to the provisions of Section 10.4 hereof, all
moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except
to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the
Issuer or the Trustee shall be under any liability for interest on any moneys received by it
hereunder.
SECTION 6.6. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to,
such compensation as the Issuer and the Trustee shall agree in writing (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express trust), and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of
it in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as may arise from its
negligence or willful misconduct. The Issuer also covenants to indemnify each of the Trustee or any
predecessor Trustee and their agents for, and to hold them harmless against, any and all loss,
damage, claims,
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liability or expense, including taxes (other than taxes based upon, measured by or determined
by the income of the Trustee), arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim (whether asserted by the Issuer, or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers or duties hereunder,
or in connection with enforcing the provisions of this Section, except to the extent that such
loss, damage, claim, liability or expense is due to its own negligence or willful misconduct. When
the Trustee incurs expenses or renders services in connection with an Event of Default specified in
Section 5.1(e) or Section 5.1(f), the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor
trustee and to pay or reimburse the Trustee and each predecessor trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of the Trustee. Such
additional indebtedness shall be a senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for the benefit of the
Holders of particular Securities or Coupons, and the Securities are hereby subordinated to such
senior claim.
SECTION 6.7. RIGHT OF TRUSTEE TO RELY ON OFFICERS CERTIFICATE, ETC. Subject to Sections 6.1
and 6.2, whenever in the administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers Certificate delivered
to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under
the provisions of this Indenture upon the faith thereof.
SECTION 6.8. QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS. The Trustee shall comply with
Section 310(b) of the Trust Indenture Act.
SECTION 6.9. PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee for each series of
Securities hereunder shall at all times be a corporation or banking association organized and doing
business under the laws of the United States of America, any State thereof or the District of
Columbia, having a combined capital and surplus of at least $50,000,000, and which is authorized
under such laws to exercise corporate trust powers and is subject to supervision or examination by
Federal, state or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 6.10.
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The provisions of this Section 6.9 are in furtherance of and subject to Section 310(a) of the
Trust Indenture Act.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE. (a) The Trustee,
or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more
or all series of Securities by giving written notice of resignation to the Issuer and (i) if any
Unregistered Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York, (ii) if any Unregistered Securities of a series
affected are then Outstanding, by mailing notice of such resignation to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee and (iii) by mailing notice of
such resignation to the Holders of then Outstanding Registered Securities of each series affected
at their addresses as they shall appear on the registry books. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning trustee may petition any court of competent jurisdiction at the
expense of the Issuer for the appointment of a successor trustee, or any Securityholder who has
been a bona fide Holder of a Security or Securities of the applicable series for at least six
months may, subject to the provisions of Section 5.12, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust
Indenture Act with respect to any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section
6.9 and Section 310(a) of the Trust Indenture Act and shall fail to resign after written
request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(iii) the Trustee shall become incapable of acting with respect to any series of
Securities, or shall be adjudged bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
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then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of
Securities and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 315(e) of the Trust Indenture Act, any Securityholder who has been a bona
fide Holder of a Security or Securities of such series for at least six months may on behalf of
himself and all others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect to such series. Such
court may thereupon, after such notice, if any, as it may deem proper and so prescribe, remove the
Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Securities of each series
at the time outstanding may at any time remove the Trustee with respect to Securities of such
series and appoint a successor trustee with respect to the Securities of such series by delivering
to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the Securityholders. If no
successor Trustee shall have been so appointed with respect to any series and have accepted
appointment within 30 days after the mailing of such notice of removal, the Trustee being removed
may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment
of a successor trustee with respect to such series pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any successor trustee
appointed as provided in Section 6.10 shall execute and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee with respect to all or any applicable series
shall become effective and such successor trustee, without any further act, deed or conveyance,
shall become vested with all rights, powers, duties and obligations with respect to such series of
its predecessor hereunder, with like effect as if originally named as trustee for such series
hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee,
upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such trustee to secure any amounts then due
it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one or more (but not
all) series, the Issuer, the predecessor trustee and each successor trustee with respect to the
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Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of
any series as to which the predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust
or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be
qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of
Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this Section 6.11, the
Issuer shall give notice thereof (a) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, (b) if any Unregistered Securities of
a series affected are then Outstanding, to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing
such notice to such Holders at such addresses as were so furnished to the Trustee (and the Trustee
shall make such information available to the Issuer for such purpose) and (c) to the Holders of
Registered Securities of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by Section 6.10. If the Issuer fails to give
such notice within ten days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE. Any
corporation or banking association into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation or banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any corporation or banking
association succeeding to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided, that such corporation or banking
association shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under
the provisions of Section 6.9, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities of any series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities
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of any series shall not have been authenticated, any such successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate of authentication shall have the full
force which under this Indenture or the Securities of such series it is provided that the
certificate of authentication of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor trustee or to authenticate Securities of any
series in the name of any predecessor trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER. The Trustee shall comply
with Section 311 (a) of the Trust Indenture Act, excluding any creditor relationship listed in
Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT. As long as any Securities of a series
remain Outstanding, the Trustee may, by an instrument in writing, appoint with the approval of the
Issuer an authenticating agent (the Authenticating Agent) which shall be authorized to act on
behalf of the Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9. Securities of each such
series authenticated by such Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee.
Whenever reference is made in this Indenture to the authentication and delivery of Securities of
any series by the Trustee or to the Trustees Certificate of Authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating
Agent for such series and a Certificate of Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any State, authorized under
such laws to exercise corporate trust powers, having a combined capital and surplus of at least
$45,000,000 (determined as provided in Section 6.9 with respect to the Trustee) and subject to
supervision or examination by Federal or state authority.
Any corporation into which any Authenticating Agent may be merged or converted, or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which any Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if it
shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee and
to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section 6.14 with respect to one or more series of Securities, the Trustee shall upon receipt of an
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Issuer Order appoint a successor Authenticating Agent, and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and to the extent
provided in Section 11.4. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Issuer
agrees to pay to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction of the Trustee, nor
shall the Trustee have any responsibility or liability for any action taken by the Authenticating
Agent.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by 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 Issuer,
if made in the manner provided in this Article.
SECTION 7.2. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES. 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. The holding of Registered
Securities shall be proved by the Security register or by a certificate of the registrar thereof.
SECTION 7.3. HOLDERS TO BE TREATED AS OWNERS. The Issuer, the Trustee and any agent of the
Issuer 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 notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal of and, subject to
the provisions of this Indenture, interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Holder of any Unregistered Security and the Holder of any Coupon as the absolute owner of
such Unregistered Security or Coupon (whether or not such Unregistered Security or Coupon shall be
overdue) for the purpose of receiving payment thereof
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or on account thereof and for all other purposes, and neither the Issuer, the Trustee, nor any
agent of the Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any
such Unregistered Security or Coupon.
SECTION 7.4. SECURITIES OWNED BY ISSUER 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 request, demand, authorization, direction, notice, consent, waiver or other
action by Securityholders under this Indenture, Securities which are owned by the Issuer or any
other obligor on the Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer 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 action only Securities which a Responsible Officer of the Trustee
actually 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 pledgees right so to act with respect to such Securities and that the pledgee is not
the Issuer 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 Issuer or any
other obligor on the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in accordance with such
advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers
Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held
by or for the account of any of the above-described persons; and, subject to Sections 6.1 and 6.2,
the Trustee shall be entitled to accept such Officers Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein are Outstanding for
the purpose of any such determination.
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
Security 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 or on registration
of transfer thereof, 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 Issuer, the Trustee and the Holders of all
the Securities affected by such action.
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ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS. The Issuer, when
authorized by a Board Resolution (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined in accordance with
or pursuant to an Issuer Order), and the Trustee may from time to time and at any time, without
consent of any Securityholders, enter into an indenture or indentures supplemental hereto 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 Issuer, or successive
successions, and the assumption by the successor corporation of the covenants, agreements and
obligations of the Issuer pursuant to Article IX;
(c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or
provisions as the Issuer and the Trustee shall consider to be for the protection or benefit of the
Holders of Securities or Coupons, and to make the occurrence, or the occurrence and continuance, of
a default in any such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies provided in this Indenture
as herein set forth; provided, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit
the remedies available to the Trustee upon such an Event of Default or may limit the right of the
Holders of a majority in aggregate principal amount of the Securities of such series to waive such
an Event of Default;
(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 any other provisions as the Issuer may deem
necessary or desirable, provided, that no such action shall adversely affect the interests of the
Holders of the Securities or Coupons in any material respect;
(e) to establish the forms or terms of Securities of any series or of the Coupons appertaining
to such Securities 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 one trustee, pursuant to the requirements of Section 6.11;
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(g) to comply with SEC requirements to effect or maintain the qualification of this Indenture
under the Trust Indenture Act;
(h) to evidence and provide for the acceptance and appointment under this Indenture of a
successor Trustee pursuant to the requirements hereof;
(i) to add one or more guarantees under this Indenture or release a guarantee pursuant to the
provisions hereof; and
(j) to change or eliminate any of the provisions of this Indenture, or to add any new
provision to this Indenture, in respect of one or more series of Securities; provided, however,
that any such change, elimination or addition shall not apply to any Security Outstanding on the
date of such indenture supplemental hereto.
The Trustee is hereby authorized to join with the Issuer 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 Trustees 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.
(A) Except as set forth in paragraph (B) below, 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 any series of Securities affected by such supplemental
indenture, the Issuer, when authorized by a Board Resolution (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the Trustee 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 and effect 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 or of the
Coupons appertaining to such Securities.
(B) No such supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or premium thereon, if any, 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 premium
thereon, if any, or interest thereon payable in any coin or currency other than that provided in
the Securities and Coupons or in accordance with the terms thereof, or
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reduce the amount of the principal of an Original Issue 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 modify any of the Subordination
Provisions or the definition of Senior Indebtedness relating to such series in a manner adverse
to the holders of such Securities in any material respect, or impair or affect the right of any
Securityholder to institute suit for the payment thereof when due or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, in each case without the
consent of the Holder of each Security so affected, or (ii) 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.
(C) 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, or of
Coupons appertaining to such Securities, 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 or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such action and may provide
that the specific terms of such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of the Issuer authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of the Holders of the Securities as aforesaid and other documents, if any, required by
Section 7.1, the Trustee shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustees own rights, duties or immunities under
this Indenture or otherwise, in which case the 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 Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall give notice thereof (i) to the
Holders of then Outstanding Registered 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, (ii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so furnished to the Trustee and (iii) if
any Unregistered Securities of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, and in each case such notice shall set forth in general terms
the substance of such supplemental indenture. Any failure of the Issuer to give such notice, or
any defect therein, shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
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SECTION 8.3. EFFECT OF SUPPLEMENTAL INDENTURE. 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 Issuer 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 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
Sections 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 may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the
Issuer, 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. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The Issuer shall not
consolidate with or merge into any other Person or transfer or lease its properties and assets
substantially as an entirety to any Person, and the Issuer shall not permit any other Person to
consolidate with or merge into the Issuer, unless:
(a) either the Issuer shall be the continuing corporation, or the successor (if other than the
Issuer) formed by such consolidation or into which the Issuer is merged or to which the properties
and assets of the Issuer substantially as an entirety are transferred or leased shall be a
corporation, limited liability company, partnership or other entity organized and existing under
the laws of the United States of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Issuer under the Securities and this
Indenture; and
(b) immediately after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Issuer or a Subsidiary as a result of such transaction as having been
incurred by the Issuer or such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing.
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SECTION 9.2. SUCCESSOR SUBSTITUTED. The successor formed by such consolidation or into which
the Issuer is merged or to which such transfer or lease is made shall succeed to and be substituted
for, and may exercise every right and power of, the Issuer under this Indenture with the same
effect as if such successor had been named as the Issuer herein, and thereafter (except in the case
of a lease to another Person) the predecessor corporation shall be relieved of all obligations and
covenants under the Indenture and the Securities and, in the event of such conveyance or transfer,
any such predecessor corporation may be dissolved and liquidated.
SECTION 9.3. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall receive an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale or conveyance, and any such assumption, complies with the
provisions of this Article IX.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE
(A) If at any time (i) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities of such series and Coupons appertaining thereto 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 Issuer shall have
delivered to the Trustee for cancellation all Securities of any series theretofore authenticated
and all unmatured Coupons appertaining thereto (other than any Securities of such series and
Coupons appertaining thereto which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.9) or (iii) in the case of any series of Securities
where the exact amount (including the currency of payment) of principal of and interest due on
which can be determined at the time of making the deposit referred to in clause (b) below, (a) all
the Securities of such series and all unmatured Coupons appertaining thereto 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 Issuer
shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
the entire amount in (i) cash (other than moneys repaid by the Trustee or any paying agent to the
Issuer in accordance with Section 10.4), (ii) in the case of any series of Securities the payments
on which may only be made in Dollars, direct obligations of the United States of America, backed by
its full faith and credit (U.S. Government Obligations), maturing as to principal and interest at
such times and in such amounts as will insure the availability of cash sufficient, in the opinion
of a nationally recognized firm of independent public accountants, an independent investment
banking firm or other valuation firm expressed in a written certification thereof delivered to the
Trustee, to pay at such maturity or upon such redemption, as the case may be, or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized firm of independent
public accountants, an
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independent investment banking firm or other valuation firm expressed in a written
certification thereof delivered to the Trustee, to pay (x) the principal and interest on all
Securities of such series and Coupons appertaining thereto 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 the Indenture and the Securities of
such series; and if, in any such case, the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer, then this Indenture shall cease to be of further effect (except as
to (i) rights of registration of transfer and exchange of Securities of such Series and of Coupons
appertaining thereto pursuant to Section 2.8 and the Issuers right of optional redemption, if any,
(ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of holders of Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if
any, (iv) any optional redemption rights of such series of Securities to the extent to be exercised
to make such call for redemption within one year, (v) the rights, obligations, duties and
immunities of the Trustee hereunder, including those under Section 6.6, (vi) the rights of the
Holders of Securities of such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of them, and (vii) the
obligations of the Issuer under Section 3.2) and the Trustee, on demand of the Issuer accompanied
by an Officers Certificate and an Opinion of Counsel and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture;
provided, that the rights of Holders of the Securities and Coupons to receive amounts in respect of
principal of and interest on the Securities and Coupons 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 Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
(B) The following provisions shall apply to the Securities of each series unless specifically
otherwise provided in a Board Resolution, Officers Certificate or indenture supplemental hereto
provided pursuant to Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts (including the
currency of payment) of principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (a) below, the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the date of the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Securities of such series and Coupons appertaining
thereto shall no longer be in effect (except as to (i) rights of registration of transfer and
exchange of Securities of such series and of Coupons appertaining thereto pursuant to Section 2.8
and the Issuers right of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders
to receive mandatory sinking fund payments, if any, (iv) any optional redemption rights of such
series of Securities to the extent to be exercised to make such call for redemption within
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one year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, (vi)
the rights of the Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or
any of them and (vii) the obligations of the Issuer under Section 3.2) and the Trustee, at the
expense of the Issuer, shall at the Issuers request, execute proper instruments acknowledging the
same, if
(a) with reference to this provision the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Securities of such series and
Coupons appertaining thereto (i) cash in an amount, or (ii) in the case of any series of Securities
the payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to
principal and interest at such times and in such amounts as will insure the availability of cash or
(iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants, an independent investment banking firm or other valuation firm
expressed in a written certification thereof delivered to the Trustee, to pay (A) the principal and
interest on all Securities of such series and Coupons appertaining thereto on each date that such
principal or interest is due and payable and (b) any mandatory sinking fund payments on the dates
on which such payments are due and payable in accordance with the terms of the Indenture and the
Securities of such series;
(b) such deposit will not result in a breach or violation of, or constitute a default under,
any agreement or instrument to which the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of Counsel based on the fact that (x)
the Issuer has received from, or there has been published by, the IRS a ruling or (y) since the
date hereof, there has been a change in the applicable United States Federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the Holders of the Securities
of such series and Coupons appertaining thereto will not recognize income, gain or loss for United
States Federal income tax purposes as a result of such deposit, defeasance and discharge and will
be subject to United States Federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit, defeasance and discharge had not occurred;
and
(d) the Issuer has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
(C) The Issuer shall be released from its obligations under Sections 3.1, 3.5, 3.6, 3.7 and
9.1 and unless otherwise provided for in the Board Resolution, Officers Certificate or Indenture
supplemental hereto establishing such series of Securities, from all covenants and other
obligations referred to in Section 2.3(19) or 2.3(21) with respect to such series of Securities,
and any Coupons appertaining thereto, outstanding on and after the date the conditions set forth
below are satisfied (hereinafter, covenant defeasance). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of any series,
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the Issuer may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Section, whether directly or indirectly by reason of any
reference elsewhere herein to such Section or by reason of any reference in such Section to any
other provision herein or in any other document and such omission to comply shall not constitute an
Event of Default under Section 5.1, but the remainder of this Indenture and such Securities and
Coupons shall be unaffected thereby. The following shall be the conditions to application of this
subsection C of this Section 10.1:
(a) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the holders of the Securities of such series and
coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of any series of
Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing
as to principal and interest at such times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants, an independent investment banking firm or other valuation firm
expressed in a written certification thereof delivered to the Trustee, to pay (A) the principal and
interest on all Securities of such series and Coupons appertaining thereof and (B) any mandatory
sinking fund payments on the day on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series;
(b) No Event of Default or event which with notice or lapse of time or both would become an
Event of Default with respect to the Securities shall have occurred and be continuing on the date
of such deposit;
(c) Such covenant defeasance shall not cause the Trustee to have a conflicting interest as
defined in Section 6.8 and for purposes of the Trust Indenture Act with respect to any securities
of the Issuer;
(d) Such covenant defeasance shall not cause any Securities then listed on any registered
national securities exchange under the Exchange Act to be delisted;
(e) The Issuer shall have delivered to the Trustee an Officers Certificate and Opinion of
Counsel to the effect that the Holders of the Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss for United States Federal income tax purposes as a
result of such covenant defeasance and will be subject to United States Federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such covenant
defeasance had not occurred; and
(f) The Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the covenant
defeasance contemplated by this provision 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 (or other trustee) pursuant to Section 10.1
shall be held in trust and applied by it to the payment,
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either directly or through any paying agent (including the Issuer acting as its own paying
agent), to the Holders of the particular Securities of such series and of Coupons appertaining
thereto 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 under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or 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 MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO YEARS. Any
moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal
of or interest on any Security of any series and of any Coupons attached thereto 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 Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the
Securities of such series and of any Coupons appertaining thereto shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter
look only to the Issuer 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, 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 (a) in respect of Registered Securities of
any series, shall at the expense of the Issuer, mail by first-class mail to Holders of such
Securities at their addresses as they shall appear on the Security register, and (b) in respect of
Unregistered Securities of any series, shall at the expense of the Issuer cause to the published
once, in an Authorized Newspaper in the Borough of Manhattan, The City of New York, 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 or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.5. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Issuer shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 10.1 or the principal or interest received in respect of
such obligations.
SECTION 10.6. EFFECT ON SUBORDINATION PROVISIONS. Unless otherwise expressly established
pursuant to Section 2.3 with respect to the Securities of any series, the provisions of Section
11.13 hereof and the Subordination Provisions established pursuant to Section 2.3(9) with respect
to such series, are hereby expressly made subject to the provisions for satisfaction and discharge
and defeasance and covenant defeasance set forth in Section 10.1 hereof and, anything herein to the
contrary notwithstanding, upon the effectiveness of such
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satisfaction and discharge and defeasance and covenant defeasance pursuant to Section 10.1
with respect to the Securities of such series, such Securities shall thereupon cease to be so
subordinated and shall no longer be subject to the provisions of Section 11.13 or the Subordination
Provisions established pursuant to Section 2.3(9) with respect to such series and, without
limitation to the foregoing, all moneys, U.S. Government Obligations and other securities or
property deposited with the Trustee (or other qualifying trustee) in trust in connection with such
satisfaction and discharge, defeasance or covenant defeasance, as the case may be, and all proceeds
therefrom may be applied to pay the principal of, premium, if any, and interest, if any, on, and
mandatory sinking fund payments, if any, with respect to the Securities of such series as and when
the same shall become due and payable notwithstanding the provisions of Section 11.13 or such
Subordination Provisions.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER EXEMPT FROM
INDIVIDUAL LIABILITY. No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or 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 Issuer or of any successor, either directly or through the Issuer 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 and the Coupons, if any, appertaining
thereto by the Holders thereof and as part of the consideration for the issue of the Securities and
the Coupons appertaining thereto.
SECTION 11.2. PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS OF
SECURITIES AND COUPONS. Nothing in this Indenture, in the Securities or in the Coupons
appertaining thereto, expressed or implied, shall give or be construed to give to any person, firm
or corporation, other than the parties thereto and their successors and the Holders of the
Securities or Coupons, if any, and the holders of Senior Indebtedness with respect to such series,
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 or Coupons, if any, and
the holders of Senior Indebtedness with respect to such series.
SECTION 11.3. SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE. All the covenants,
stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer
shall bind its successors and assigns, whether so expressed or not.
SECTION 11.4. NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES AND COUPONS.
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
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Holders of Securities or Coupons, if any, to or on the Issuer shall be in writing (including
telecopy) and 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 Issuer is filed
by the Issuer with the Trustee) to CVR Energy, Inc., 2277 Plaza Drive, Suite 500, Sugar Land,
Texas, 77479, Attention: Secretary, Telecopy: (913) 981-0002. Any notice, direction, request or
demand by the Issuer or any Holder of Securities or Coupons, if any, to or upon the Trustee shall
be in writing (including telecopy) and shall be deemed to have been sufficiently given or served by
being deposited postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Trustee is filed by the Trustee with the Issuer) to
Wells Fargo Bank, N.A., 45 Broadway, 14th Floor, New York, NY 10006, Attention:
Corporate Trust Services, Telecopy: (212) 515-1589.
Where this Indenture provides for notice to Holders of Registered Securities, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class mail, postage prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register.
Where this Indenture provides for notice to holders of Unregistered Securities, such notice
shall be sufficiently given (unless otherwise expressly provided herein) by giving notice to such
Holders (a) by publication of such notice at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, and (b) by mailing such notice to the Holders of Unregistered
Securities who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act at such addresses as were so furnished to the Trustee.
In any case where notice to such 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. 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 case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer when such notice is required to the given pursuant to
any provision of this Indenture, then any manner of giving such notice as shall be reasonably
satisfactory 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 Issuer to the Trustee to take any action under any
of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers
Certificate stating that all conditions precedent 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 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
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to such particular application or demand, no additional certificate or opinion need be
furnished.
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,
(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 opinion 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 an officer of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows 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 Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, 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 Issuer 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 Issuer, unless such officer or counsel,
as the case may be, knows that the certificate or opinion of 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 care 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. If the date of maturity of
interest on or principal of the Securities of any series or any Coupons appertaining thereto or the
date fixed for redemption or repayment of any such Security or Coupon 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 duties imposed by,
or with another provision (an incorporated
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provision) included in this Indenture by operation of Sections 310 to 318, inclusive, of the
Trust Indenture Act, such imposed duties or incorporated provision shall control.
SECTION 11.8. NEW YORK LAW TO GOVERN; WAIVER OF JURY TRIAL. THIS INDENTURE AND EACH SECURITY
AND COUPON SHALL BE DEEMED TO BE A CONTRACT 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, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(b).
EACH OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 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. The exchange of copies of this Indenture and of signature pages by facsimile or
PDF transmission shall constitute effective execution and delivery of this Indenture as to the
parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of
the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures
for all purposes.
SECTION 11.10. EFFECT OF HEADINGS. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 11.11. SECURITIES IN A FOREIGN CURRENCY. Unless otherwise specified in an Officers
Certificate delivered pursuant to Section 2.3 of this Indenture with respect to a particular series
of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all series or all series
affected by a particular action at the time Outstanding and, at such time, there are Outstanding
Securities of any series which are denominated in a Foreign Currency, then the principal amount of
Securities of such series which shall be deemed to be Outstanding for the purpose of taking such
action shall be that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate in The City of New York for cable transfers of such currency or currencies as published
by the Federal Reserve Bank of New York as of the most recent available date. If such Market
Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the Federal Reserve
Bank of New York or quotations from one or more major banks in The City of New York or in the
country of issue of the currency in question, which for purposes of the euro shall be any member
state of the European Union that has adopted the euro, as the Trustee shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a series
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denominated in a currency other than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 11.12. JUDGMENT CURRENCY. The Issuer agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or interest on the
Securities of any series (the Required Currency) into a currency in which a judgment will be
rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which final unappealable
judgment is entered and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so expressed to be payable and
(iii) shall not be affected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, New York Banking Day means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to close.
SECTION 11.13. AGREEMENT TO SUBORDINATE. The Issuer, for itself, its successors and assigns,
covenants and agrees, and each Holder of Securities of any series by his acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and premium, if any) and
interest, if any, on, and mandatory sinking fund payments, if any, in respect of each and all of
the Securities of such series shall be expressly subordinated, to the extent and in the manner
provided in the Subordination Provisions established with respect to the Securities of such series
pursuant to Section 2.3(9) hereof, in right of payment to the prior payment in full of all Senior
Indebtedness with respect to such series.
SECTION 11.14. FORCE MAJEURE. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or
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natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood that the Trustee
shall use reasonable efforts which are consistent with accepted practices in the banking industry
to resume performance as soon as practicable under the circumstances.
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 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. NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of redemption to the Holders
of Registered Securities of any series to be redeemed as a whole or in part at the option of the
Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid, 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 at their last addresses as they shall appear upon the registry books.
Notice of redemption to the Holders of Unregistered Securities to be redeemed as a whole or in
part, who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of
the Trust Indenture Act shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 prior to the date fixed for redemption, to
such Holders at such addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Issuer, the Trustee shall make such information available to the Issuer for
such purpose). Notice of redemption to all other Holders of Unregistered Securities shall be
published in an Authorized Newspaper in the Borough of Manhattan, The City of New York, in each
case, once in each of three successive calendar weeks, the first publication to be not less than 30
nor more than 60 days prior to the date fixed for redemption. 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 such Security of such series.
The notice of redemption to each such Holder shall identify the Securities to be redeemed
(including CUSIP number(s)) and specify the aggregate principal amount of Securities of such series
to be redeemed, the date fixed for redemption, the redemption price, the place or places of
payment, that payment will be made upon presentation and surrender of such Securities and, in the
case of Securities with Coupons attached thereto, of all Coupons appertaining thereto maturing
after the date fixed for redemption, 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. In case any Security of a series is to be
redeemed in part only, the notice of redemption to Holders of Securities of the series shall state
the portion of the principal amount thereof to be redeemed and shall state that on and after
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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
Issuer shall be given by the Issuer or, at the Issuers request, by the Trustee in the name and at
the expense of the Issuer.
On or before 11:00 a.m., New York City time, on the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one
or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate
and hold in trust as provided in Section 3.4) 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. The Issuer will
deliver to the Trustee at least 20 days prior to the date fixed for redemption, or such shorter
period as shall be acceptable to the Trustee, an Officers Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the election of the
Issuer prior to the expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the Trustee shall select, in
such manner as it shall be deemed appropriate and fair, in its sole discretion, Securities of such
series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal
to the minimum authorized denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly notify the Issuer 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. 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.
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 Issuer 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 the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 6.5 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, together with all Coupons, if any, appertaining thereto maturing after
the date fixed for redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price,
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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 in
the case of Securities with Coupons attached thereto, to the Holders of the Coupons for such
interest upon surrender thereof, and in the case of Registered Securities, to the Holder of such
Registered Securities registered as such on the relevant record date, subject to the terms and
provisions of Section 2.3 and 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 of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant Coupons maturing after the date fixed for redemption, the surrender
of such missing Coupon or Coupons may be waived by the Issuer and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of
the Issuer, a new Security or Securities of such series, 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 an Officers Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be given as being owned of
record and beneficially by, and not pledged or hypothecated by, either (a) the Issuer 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 Issuer.
SECTION 12.5. MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount of any sinking fund
payment provided for by the terms of the 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 the 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 Issuer 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 Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the
Issuer 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
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(c) receive credit for Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision 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 60th day next preceding each sinking fund payment date for any series, the
Issuer will deliver to the Trustee an Officers Certificate (which need not contain the statements
required by Section 11.5) (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series
and the basis for such credit, (b) stating that none of the Securities of such series 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 and (d) stating whether or not the Issuer 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 Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer 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 Officers Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers Certificate shall be irrevocable and upon
its receipt by the Trustee, the Issuer 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 Issuer, on or before any such 60th day, to deliver such Officers
Certificate 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 Issuer (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 Issuer 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 sinking fund
payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign Currency) if the Issuer shall so
request 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 $50,000 (or the equivalent thereof in any Foreign Currency) or less and the
Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 (or the
equivalent thereof in any Foreign Currency) is available. The Trustee shall select, in the manner
provided in Section 12.2, 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, and shall (if
requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of
such series (or portions thereof) so selected. Securities shall be excluded from eligibility for
redemption under this Section if they are identified by registration and certificate number in an
Officers Certificate delivered to the Trustee at least 60 days prior to
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the sinking fund payment date as being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Issuer or (b) an entity specifically identified in such Officers
Certificate as directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer. The Trustee, in the name and at the expense of the Issuer (or the
Issuer, if it shall so request 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 in part
at the option of the Issuer. 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.
On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or
shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or give 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 giving 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 Issuer 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
Five and held for the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and
attested as of the date first written above.
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CVR ENERGY, INC.
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By: |
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Name: |
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Title: |
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WELLS FARGO BANK, N.A., as Trustee
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By: |
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Name: |
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Title: |
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EX-5.1
Exhibit 5.1
February 12, 2009
CVR Energy, Inc.
2277 Plaza Drive, Suite 500
Sugar Land, Texas 77479
Ladies and Gentlemen:
We have acted as counsel to CVR Energy, Inc., a Delaware corporation (the Company), in
connection with the Companys Amendment No. 1 on Form S-3 to Form S-1, file no. 333-151787, as
may be amended from time to time (the Registration Statement), under the Securities Act of
1933, as amended (the Securities Act), with respect to the contemplated issuance by the
Company from time to time, as set forth in the prospectus contained in the Registration
Statement (the Prospectus) and as may be set forth in one or more supplements to the
Prospectus (each, a Prospectus Supplement) of up to $250 million of (i) shares of the
Companys common stock, par value $.01 per share (the Common Stock), (ii) shares of the
Companys preferred stock, par value $.01 per share (the Preferred Stock), (iii) one or more
series of senior or subordinated debt securities of the Company (the Debt Securities), (iv)
warrants of the Company to purchase Common Stock, Preferred Stock and/or Debt Securities
(collectively, the Warrants) and (v) rights (the Rights) to purchase Common Stock,
Preferred Stock and/or Debt Securities pursuant to a rights offering (the Rights Offering)
to stockholders of record on the record date for the Rights Offering. With your permission,
all assumptions and statements of reliance herein have been made without any independent
investigation or verification on our part except to the extent otherwise expressly stated, and
we express no opinion with respect to the subject matter or accuracy of such assumptions or
items relied upon.
The Debt Securities may be issued pursuant to a senior debt indenture, dated February 12,
2009, by and between the Company and Wells Fargo Bank, N.A., as trustee (the Trustee) (as
may be amended or supplemented from time to time, the Senior Indenture) attached as Exhibit
4.1 to the Registration Statement, or a subordinated debt indenture, dated February 12, 2009,
by and between the Company and the Trustee (as may be amended or supplemented from time to
time, the Subordinated Indenture, and, together with the Senior Indenture, each an
Indenture and collectively, the Indentures), attached as Exhibit 4.2 to the Registration
Statement. The Warrants may be issued under one or more warrant
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CVR Energy, Inc.
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February 12, 2009 Page 2 |
agreements (each, a Warrant Agreement and collectively, the Warrant Agreements) by
and between the Company and a financial institution identified therein as warrant agent (each,
a Warrant Agent). The Rights may be issued under one or more rights agreements (each, a
Rights Agreement and collectively, the Rights Agreements) by and between the Company and a
financial institution identified therein as rights agent (each, a Rights Agent). The
Indentures, the Warrants, the Warrant Agreements, the Rights and the Rights Agreements and any
other documents contemplated thereby or hereby are collectively referred to herein as the
Documents.
In connection with this opinion, we have (i) investigated such questions of law, (ii)
examined originals or certified, conformed or reproduction copies of such agreements,
instruments, documents and records of the Company, such certificates of public officials and
such other documents and (iii) received such information from officers and representatives of
the Company as we have deemed necessary or appropriate for the purposes of this opinion.
In all such examinations, we have assumed the legal capacity of all natural persons
executing the Documents, the genuineness of all signatures, the authenticity of original and
certified documents and the conformity to original or certified documents of all copies
submitted to us as conformed or reproduction copies. As to various questions of fact relevant
to the opinions expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties in the Indentures, certificates and oral or written statements
and other information of or from public officials and officers and representatives of the
Company and others and assume compliance on the part of all parties to the Documents with
their covenants and agreements contained therein.
To the extent it may be relevant to the opinions expressed below, we have assumed (i)
that the Company will have sufficient authorized but unissued and unreserved shares of Common
Stock and/or Preferred Stock on the date of any issuance of Common Stock, Preferred Stock,
Warrants to acquire Common Stock or Preferred Stock, Rights to acquire Common Stock or
Preferred Stock, Preferred Stock convertible into Common Stock or Debt Securities convertible
into Common Stock or Preferred Stock, as applicable in each case, registered pursuant to the
Registration Statement and (ii) that the parties to the Documents other than the Company have
the power and authority to enter into and perform such Documents and to consummate the
transactions contemplated thereby, that the Documents have been duly authorized, executed and
delivered by, and constitute legal, valid and binding obligations of such parties enforceable
against such parties in accordance with their terms, and that such parties will comply with
all of their obligations under the Documents and all laws applicable thereto.
Based upon the foregoing and subject to the limitations, qualifications
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CVR Energy, Inc.
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February 12, 2009 Page 3 |
and assumptions set forth herein, we are of the opinion that:
1. |
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When (i) the Registration Statement has become effective under the
Securities Act, (ii) the terms of the issuance and sale of the shares of Common
Stock by the Company (including any Common Stock duly issued upon the exercise of
any Warrants or any Rights exercisable for Common Stock or upon exchange or
conversion of any Debt Securities or shares of Preferred Stock that are
exchangeable or convertible into Common Stock) registered pursuant to the
Registration Statement have been duly approved by the Board of Directors of the
Company or an authorized committee thereof (the Board) in conformity with the
Companys Amended and Restated Certificate of Incorporation (the Certificate of
Incorporation) and the Companys Amended and Restated Bylaws (the Bylaws) and
all other necessary corporate action on the part of the Company has been taken in
connection therewith and in a manner so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument then binding on
the Company and so as to comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company and (iii) such
shares of Common Stock have been issued and delivered against payment therefor in
an amount in excess of the par value thereof, in accordance with the terms of the
agreement under which they are sold and in the manner contemplated by the
Registration Statement and/or the applicable Prospectus Supplement, such shares of
Common Stock will be validly issued, fully paid and non-assessable. |
2. |
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When (i) the Registration Statement has become effective under the
Securities Act, (ii) in accordance with Section 151 of the General Corporation Law
of the State of Delaware (the DGCL) and in conformity with the Certificate of
Incorporation and the Bylaws, (a) the Board has fixed the powers, designations,
preferences and relative, participating, optional or other rights, if any, and the
qualifications, limitations or restrictions, if any, of a series of Preferred
Stock (including any Preferred Stock duly issued upon the exercise of any Warrants
or any Rights exercisable for Preferred Stock or upon exchange or conversion of
any Debt Securities that are exchangeable or convertible into Preferred Stock)
registered pursuant to the Registration Statement and adopted a Certificate of
Designations (the Certificate of Designations) in the form required by
applicable law and (b) proper and valid filing with the Office of the Secretary of
State of the State of Delaware of such Certificate of Designations has been made,
(iii) the terms of the issuance and sale of such shares of Preferred Stock have
been duly approved by the Board in conformity with the Certificate of
Incorporation and the Bylaws and all other necessary corporate action on the part
of the Company has been taken in connection therewith and in a manner so as not |
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CVR Energy, Inc.
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February 12, 2009 Page 4 |
to violate any applicable law or result in a default under or breach of any
agreement or instrument then binding on the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company and (iv) such shares of Preferred Stock have been
issued and delivered against payment therefor in an amount in excess of the par
value thereof, in accordance with the terms of the agreement under which they are
sold and in the manner contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, such shares of Preferred Stock will be validly
issued, fully paid and non-assessable.
3. |
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When (i) the Registration Statement has become effective under the
Securities Act, (ii) the terms of the issuance and sale of the Debt Securities
(including any Debt Securities duly issued upon the exercise of any Warrants or
any Rights exercisable for Debt Securities or upon exchange or
conversion of
shares of Preferred Stock that are exchangeable or convertible into Debt
Securities) have been established in conformity with the applicable supplement to
the Indenture and duly approved by the Board in conformity with the Certificate of
Incorporation and the Bylaws and all other necessary corporate action on the part
of the Company has been taken in connection therewith and in a manner so as not to
violate any applicable law or result in a default under or breach of any agreement
or instrument then binding on the Company and so as to comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction over
the Company, (iii) the applicable Indenture has been duly authorized, executed and
delivered by the Company and the Trustee and (iv) the Debt Securities have been
duly authenticated by the Trustee and duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms of the applicable
Indenture, in accordance with the terms of the agreement under which they are sold
and in the manner contemplated by the Registration Statement and/or the applicable
Prospectus Supplement, such Debt Securities will constitute valid and binding
obligations of the Company. |
4. |
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When (i) the Registration Statement has become effective under the
Securities Act, (ii) the terms of the issuance and sale of the Warrants registered
pursuant to the Registration Statement have been established in conformity with
the applicable Warrant Agreement and duly approved by the Board in conformity with
the Certificate of Incorporation and the Bylaws and all other necessary corporate
action on the part of the Company has been taken in connection therewith and in a
manner so as not to violate any applicable law or result in a default under or
breach of any agreement or instrument then binding on the Company and so as to
comply with any |
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CVR Energy, Inc.
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February 12, 2009 Page 5 |
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, (iii) the applicable Warrant Agreement has been duly
authorized, executed and delivered by the Company and the Warrant Agent, (iv) such
Warrants have been duly authenticated by the Warrant Agent and duly executed and
delivered by the Company against payment therefor in accordance with the terms of
the applicable Warrant Agreement, in accordance with the terms of the agreement
under which they are sold and in the manner contemplated by the Registration
Statement and/or the applicable Prospectus Supplement, (v) the terms of the Common
Stock, the Preferred Stock or the Debt Securities issuable upon exercise of the
Warrants have been duly approved by the Board in conformity with the Certificate of
Incorporation and the Bylaws as specified above, (vi) the Common Stock and the
Preferred Stock issuable upon exercise of the Warrants have been properly reserved
for issuance and (vii) upon exercise of such Warrants into shares of Common Stock
or Preferred Stock, such shares of Common Stock or Preferred Stock have been issued
and delivered against payment therefor in an amount in excess of the par value
thereof, such Warrants will constitute valid and binding obligations of the
Company.
5. |
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When (i) the Registration Statement has become effective under the
Securities Act, (ii) the terms of the issuance and sale of the Rights registered
pursuant to the Registration Statement have been established in conformity with
the applicable Rights Agreement and duly approved by the Board in conformity with
the Certificate of Incorporation and the Bylaws and all other necessary corporate
action on the part of the Company has been taken in connection therewith and in a
manner so as not to violate any applicable law or result in a default under or
breach of any agreement or instrument then binding on the Company and so as to
comply with any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company, (iii) the applicable Rights Agreement
has been duly authorized, executed and delivered by the Company and the Rights
Agent, (iv) such Rights have been duly authenticated by the Rights Agent and duly
executed and delivered by the Company against payment therefor in accordance with
the terms of the applicable Rights Agreement, in accordance with the terms of the
agreement under which they are sold and in the manner contemplated by the
Registration Statement and/or the applicable Prospectus Supplement, (v) the terms
of the Common Stock, the Preferred Stock or the Debt Securities issuable upon
exercise of the Rights have been duly approved by the Board in conformity with the
Certificate of Incorporation and the Bylaws as specified above, (vi) the Common
Stock and the Preferred Stock issuable upon exercise of the Rights have been
properly reserved for issuance and (vii) upon exercise of such Rights into shares
of |
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CVR Energy, Inc.
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February 12, 2009 Page 6 |
Common Stock or Preferred Stock, such shares of Common Stock or Preferred Stock
have been issued and delivered against payment therefor in an amount in excess of
the par value thereof, such Rights will constitute valid and binding obligations of
the Company.
We express no opinion as to the validity, binding effect or enforceability of any provision of
the Documents:
(i) relating to indemnification, contribution or exculpation;
(ii) containing any purported waiver, release, variation, disclaimer, consent or other
agreement of similar effect (all of the foregoing, collectively, a Waiver) by any party
under any of such agreements or instruments to the extent limited by provisions of
applicable law (including judicial decisions), or to the extent that such a Waiver applies
to a right, claim, duty, defense or ground for discharge otherwise existing or occurring as
a matter of law (including judicial decisions), except to the extent that such a Waiver is
effective under, and is not prohibited by or void or invalid under, provisions of applicable
law (including judicial decisions);
(iii) related to (I) forum selection or submission to jurisdiction (including, without
limitation, any waiver of any objection to venue in any court or of any objection that a
court is an inconvenient forum) to the extent that the legality, validity, binding effect or
enforceability of any such provision is to be determined by any court other than a court of
the State of New York, or (II) choice of governing law to the extent that the legality,
validity, binding effect or enforceability of any such provision is to be determined by any
court other than a court of the State of New York or a federal district court sitting in the
State of New York, in each case, applying the choice of law principles of the State of New
York;
(iv) specifying that provisions thereof may be waived only in writing, to the extent
that an oral agreement or an implied agreement by trade practice or course of conduct has
been created that modifies any provision of such agreement;
(v) purporting to give any person or entity the power to accelerate obligations without
any notice to the obligor; and
(vi) which may be construed to be in the nature of a penalty.
We express no opinion as to the enforceability of any provision of any agreement (i)
providing for payments thereunder in a currency other than currency of the United States of
America to the extent that a court of competent jurisdiction, under applicable law, will
convert any judgment rendered in such other currency into currency of the United States of
America or to the extent that payment in a currency other than currency of the United States
of America is contrary to applicable law, (ii) providing for
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CVR Energy, Inc.
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February 12, 2009 Page 7 |
governmental authority to limit, delay or prohibit the making of payments outside the
United States or in foreign currency or composite currency or (iii) concerning the
enforceability of the waiver of rights or defenses contained in the Indentures relating to
waiver of stay, extension or usury laws.
The opinions set forth above are subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws affecting creditors
rights and remedies generally, and (ii) general principles of equity including, without
limitation, standards of materiality, good faith, fair dealing and reasonableness, equitable
defenses and limits as to the availability of equitable remedies, whether such principles are
considered in a proceeding at law or in equity.
The opinions expressed herein are limited to the federal laws of the United States of
America, the laws of the State of New York and, to the extent relevant to the opinions
expressed herein, the applicable provisions of the DGCL and the Constitution of the State of
Delaware, in each case as currently in effect, and reported judicial decisions interpreting
such provisions of the DGCL and the Constitution of the State of Delaware. The opinions
expressed herein are limited to the matters stated herein, and no opinion is implied or may be
inferred beyond the matters expressly stated herein. The opinions expressed herein are given
as of the date hereof, and we undertake no obligation to supplement this letter if any
applicable laws change after the date hereof or if we become aware of any facts that might
change the opinions expressed herein after the date hereof or for any other reason.
We hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the references to this firm under the captions Legal Matters in the
Prospectus and Legal Matters in any Prospectus Supplement. In giving these consents, we do
not hereby admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act.
Very truly yours,
/s/ FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP
EX-5.2
Exhibit 5.2
February 12, 2009
CVR Energy, Inc.
2277 Plaza Drive, Suite 500
Sugar Land, Texas 77479
Ladies and Gentlemen:
We have acted as counsel to CVR Energy, Inc., a Delaware corporation (the Company), in
connection with the Companys Amendment No. 1 on Form S-3 to Form S-1, file no. 333-151787, as
may be amended from time to time (the Registration Statement), under the Securities Act of
1933, as amended (the Securities Act), with respect to the contemplated sale by the selling
stockholders named in the Registration Statement (the Selling Stockholders) from time to
time, as set forth in the prospectus contained in the Registration Statement (the
Prospectus) and as may be set forth in one or more supplements to the Prospectus (each, a
Prospectus Supplement) of up to 15,000,000 shares of the Companys common stock, par value
$.01 per share (the Shares). With your permission, all assumptions and statements of
reliance herein have been made without any independent investigation or verification on our
part except to the extent otherwise expressly stated, and we express no opinion with respect
to the subject matter or accuracy of such assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such questions of law, (ii)
examined originals or certified, conformed or reproduction copies of such agreements,
instruments, documents and records of the Company, such certificates of public officials and
such other documents and (iii) received such information from officers and representatives of
the Company as we have deemed necessary or appropriate for the purposes of this opinion.
In all such examinations, we have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of original and certified documents and the
conformity to original or certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the opinion expressed herein,
we have relied upon, and assume the accuracy of, certificates and oral or written statements
and other information of or from public officials and officers and representatives of the
Company.
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CVR Energy, Inc.
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February 12, 2009 Page 2 |
Based upon the foregoing and subject to the limitations, qualifications and assumptions
set forth herein, we are of the opinion that all necessary corporate action on the part of the
Company has been taken to authorize the issuance of the Shares, and the Shares are validly
issued, fully paid, and nonassessable.
The opinion expressed herein is limited to the federal laws of the United States of
America, the laws of the State of New York and, to the extent relevant to the opinion
expressed herein, the applicable provisions of the General Corporation Law of the State of
Delaware (the DGCL) and the Constitution of the State of Delaware, in each case as currently
in effect, and reported judicial decisions interpreting such provisions of the DGCL and the
Constitution of the State of Delaware. The opinion expressed herein is limited to the matters
stated herein, and no opinion is implied or may be inferred beyond the matters expressly
stated herein. The opinion expressed herein is given as of the date hereof, and we undertake
no obligation to supplement this letter if any applicable laws change after the date hereof or
if we become aware of any facts that might change the opinion expressed herein after the date
hereof or for any other reason.
We hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the references to this firm under the captions Legal Matters in the
Prospectus and Legal Matters in any Prospectus Supplement. In giving these consents, we do
not hereby admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act.
Very truly yours,
/s/ FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP
EX-12.1
Exhibit 12.1
Computation of Ratio of Earnings to Fixed Charges
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Original Predecessor |
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Immediate Predecessor |
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Successor |
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Year |
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62 Days |
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304 Days |
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174 Days |
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233 Days |
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Year |
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Year |
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Nine |
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Ended |
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Ended |
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Ended |
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Ended |
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Ended |
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Ended |
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Ended |
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Months Ended |
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December 31, |
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March 2, |
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December 31, |
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June 23, |
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December 31, |
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December 31, |
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December 31, |
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September 30, |
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2003 |
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2004 |
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2004 |
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2005 |
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2005 |
|
2006 |
|
2007 |
|
2008 |
|
|
(in millions) |
Fixed charges |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
a) Interest expensed and capitalized |
|
|
1.3 |
|
|
|
|
|
|
|
|
8.8 |
|
|
|
7.3 |
|
|
|
|
24.1 |
|
|
|
52.2 |
|
|
|
70.4 |
|
|
|
30.2 |
|
b) Amortized capitalized expenses related to
indebtedness (1) |
|
|
|
|
|
|
|
|
|
|
|
8.5 |
|
|
|
8.9 |
|
|
|
|
1.7 |
|
|
|
26.7 |
|
|
|
4.1 |
|
|
|
1.5 |
|
c) Estimate of interest within rental expense |
|
|
1.0 |
|
|
|
0.2 |
|
|
|
|
0.8 |
|
|
|
0.6 |
|
|
|
|
0.6 |
|
|
|
1.3 |
|
|
|
1.3 |
|
|
|
1.1 |
|
|
|
|
|
|
|
|
|
|
Total fixed charges |
|
|
2.3 |
|
|
|
0.2 |
|
|
|
|
18.1 |
|
|
|
16.8 |
|
|
|
|
26.4 |
|
|
|
80.2 |
|
|
|
75.8 |
|
|
|
32.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted earnings |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
a) Pre-tax income (loss) (2) |
|
|
27.9 |
|
|
|
11.2 |
|
|
|
|
83.5 |
|
|
|
88.5 |
|
|
|
|
(182.2 |
) |
|
|
311.4 |
|
|
|
(156.3 |
) |
|
|
204.2 |
|
b) Fixed charges |
|
|
|
|
|
|
0.2 |
|
|
|
|
18.1 |
|
|
|
16.8 |
|
|
|
|
26.4 |
|
|
|
80.2 |
|
|
|
75.8 |
|
|
|
32.8 |
|
c) Amortization of capitalized interest |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.1 |
|
|
|
0.5 |
|
|
|
0.9 |
|
d) Interest capitalized |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.3 |
) |
|
|
|
(0.8 |
) |
|
|
(11.6 |
) |
|
|
(12.0 |
) |
|
|
(1.6 |
) |
|
|
|
|
|
|
|
|
|
Adjusted earnings |
|
|
27.9 |
|
|
|
11.4 |
|
|
|
|
101.6 |
|
|
|
105.0 |
|
|
|
|
(156.6 |
) |
|
|
380.1 |
|
|
|
(92.0 |
) |
|
|
236.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges (3) |
|
|
12.1 |
x |
|
|
57.0 |
x |
|
|
|
5.6 |
x |
|
|
6.3 |
x |
|
|
|
|
|
|
|
4.7 |
x |
|
|
|
|
|
|
7.2 |
x |
|
|
|
(1) |
|
Includes the write-off of $7.2 million of deferred financing costs in connection with the
refinancing of our senior secured credit facility on
May 10, 2004; $8.1 million of deferred financing costs in connection with the refinancing of our
senior secured credit facility on
June 23, 2005; $23.4 million in connection with the refinancing of our senior secured credit
facility on December 28, 2006 and $1.3 million in
connection with the repayment and termination of three credit facilities on October 26, 2007. |
|
(2) |
|
Pre-tax income (loss) for the calculation of ratio of income to fixed charges is defined as
pre-tax income (loss) from continuing operations
before adjustments for minority interest in consolidated subsidiary. |
|
(3) |
|
Earnings were insufficient to cover fixed charges by $183.0 million and $167.8 million for the
233 days ended December 31, 2005 and the year
ended December 31, 2007, respectively. |
EX-23.1
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
CVR Energy, Inc.:
We consent to the use of our report incorporated by reference herein and to the reference to our
firm under the heading Experts in the prospectus.
Our report dated March 28, 2008, except as to note 2, which is as of May 8, 2008, contains an
explanatory paragraph that states that as discussed in note 1 to the consolidated financial
statements, effective June 24, 2005, the Successor acquired the net assets of the Immediate
Predecessor in a business combination accounted for as a purchase. As a result of this acquisition,
the consolidated financial statements for the periods after the acquisition are presented on a
different cost basis than that for the period before the acquisition and, therefore, are not
comparable. Our report dated March 28, 2008, except as to note 2, which is as of May 8, 2008, also
contains an explanatory paragraph that states as discussed in note 2 to the consolidated financial
statements, the Company has restated the accompanying consolidated financial statements as of and
for the year ended December 31, 2007.
/s/ KPMG LLP
Kansas City, Missouri
February 12, 2009
EX-24.2
Exhibit 24.2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and appoints John J.
Lipinski, James T. Rens and Edmund S. Gross, and each of them, his true and lawful
attorneys-in-fact and agents with full powers of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any or all amendments to this
Registration Statement, including post-effective amendments and registration statements filed
pursuant to Rule 462(b) and otherwise, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-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, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies and confirms all his or
her said attorneys-in-fact and agents, or any of them, or his substitute or substitutes may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of
this 7th day of February, 2009.
EX-25.1
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
o CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2)
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
|
|
|
A National Banking Association
|
|
94-1347393 |
(Jurisdiction of incorporation or
|
|
(I.R.S. Employer |
organization if not a U.S. national
|
|
Identification No.) |
bank) |
|
|
|
|
|
101 North Phillips Avenue |
|
|
Sioux Falls, South Dakota
|
|
57104 |
(Address of principal executive offices)
|
|
(Zip code) |
Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth Street and Marquette Avenue, 17th Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name, address and telephone number of agent for service)
CVR ENERGY, INC.
(Exact name of obligor as specified in its charter)
|
|
|
Delaware
|
|
61-1512186 |
(State or other jurisdiction of
|
|
(I.R.S. Employer |
incorporation or organization)
|
|
Identification No.) |
|
|
|
2277 Plaza Drive, Suite 500 |
|
|
Sugar Land, Texas
|
|
77479 |
(Address of principal executive offices)
|
|
(Zip code) |
Senior Debt Securities
(Title of the indenture securities)
Item 1. General Information. Furnish the following information as to the trustee:
|
(a) |
|
Name and address of each examining or supervising
authority to which it is subject. |
|
|
|
|
Comptroller of the Currency
Treasury Department
Washington, D.C. |
|
|
|
|
Federal Deposit Insurance Corporation
Washington, D.C. |
|
|
|
|
Federal Reserve Bank of San Francisco
San Francisco, California 94120 |
|
|
(b) |
|
Whether it is authorized to exercise corporate trust
powers. |
|
|
|
|
The trustee is authorized to exercise corporate trust powers. |
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee,
describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as
provided under Item 13.
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of
Eligibility.
|
|
|
Exhibit 1.
|
|
A copy of the Articles of Association of the trustee now in effect.* |
|
|
|
Exhibit 2.
|
|
A copy of the Comptroller of the Currency Certificate of Corporate
Existence and Fiduciary Powers for Wells Fargo Bank, National Association,
dated February 4, 2004.** |
|
|
|
Exhibit 3.
|
|
See Exhibit 2 |
|
|
|
Exhibit 4.
|
|
Copy of By-laws of the trustee as now in effect.*** |
|
|
|
Exhibit 5.
|
|
Not applicable. |
|
|
|
Exhibit 6.
|
|
The consent of the trustee required by Section 321(b) of the Act. |
|
|
|
Exhibit 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. |
|
|
|
Exhibit 8.
|
|
Not applicable. |
|
|
|
Exhibit 9.
|
|
Not applicable. |
|
|
|
* |
|
Incorporated by reference to the exhibit of the same number to the trustees Form T-1 filed as
exhibit 25 to the Form S-4 dated December 30, 2005 of file number 333-130784-06. |
|
** |
|
Incorporated by reference to the exhibit of the same number to the trustees Form T-1 filed
as exhibit 25 to the Form T-3 dated March 3, 2004 of file number 022-28721. |
|
*** |
|
Incorporated by reference to the exhibit of the same number to the trustees Form T-1 filed
as exhibit 25 to the Form S-4 dated May 26, 2005 of file number 333-125274. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells
Fargo Bank, National Association, a national banking association organized and existing under the
laws of the United States of America, has duly caused this statement of eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of
New York on the 9th day of February, 2009.
|
|
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
/s/ Martin G. Reed
|
|
|
Martin G. Reed |
|
|
Vice President |
|
|
EXHIBIT 6
February 9, 2009
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the
undersigned hereby consents that reports of examination of the undersigned made by Federal,
State, Territorial, or District authorities authorized to make such examination may be
furnished by such authorities to the Securities and Exchange Commission upon its request
therefor.
|
|
|
|
|
|
Very truly yours,
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
/s/ Martin G. Reed
|
|
|
Martin G. Reed |
|
|
Vice President |
|
|
EXHIBIT 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business September 30, 2008, filed in accordance with 12 U.S.C. §161 for National
Banks.
|
|
|
|
|
|
|
|
|
|
|
Dollar Amounts |
|
|
|
|
|
In Millions |
|
ASSETS |
|
|
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
|
$ |
12,749 |
|
Interest-bearing balances |
|
|
|
|
1,984 |
|
Securities: |
|
|
|
|
|
|
Held-to-maturity securities |
|
|
|
|
0 |
|
Available-for-sale securities |
|
|
|
|
76,317 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
|
|
Federal funds sold in domestic offices |
|
|
|
|
17,288 |
|
Securities purchased under agreements to resell |
|
|
|
|
5,183 |
|
Loans and lease financing receivables: |
|
|
|
|
|
|
Loans and leases held for sale |
|
|
|
|
11,992 |
|
Loans and leases, net of unearned income |
|
320,888 |
|
|
|
|
LESS: Allowance for loan and lease losses |
|
5,414 |
|
|
|
|
Loans and leases, net of unearned income and allowance |
|
|
|
|
315,474 |
|
Trading Assets |
|
|
|
|
6,980 |
|
Premises and fixed assets (including capitalized leases) |
|
|
|
|
4,254 |
|
Other real estate owned |
|
|
|
|
974 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
|
|
445 |
|
Intangible assets |
|
|
|
|
|
|
Goodwill |
|
|
|
|
10,853 |
|
Other intangible assets |
|
|
|
|
20,410 |
|
Other assets |
|
|
|
|
29,950 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
|
|
$ |
514,853 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
|
|
Deposits: |
|
|
|
|
|
|
In domestic offices |
|
|
|
$ |
296,059 |
|
Noninterest-bearing |
|
72,132 |
|
|
|
|
Interest-bearing |
|
223,927 |
|
|
|
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
|
|
60,178 |
|
Noninterest-bearing |
|
1,122 |
|
|
|
|
Interest-bearing |
|
59,056 |
|
|
|
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
|
|
Federal funds purchased in domestic offices |
|
|
|
|
2,107 |
|
Securities sold under agreements to repurchase |
|
|
|
|
5,886 |
|
|
|
|
|
|
|
|
Dollar Amounts |
|
|
|
In Millions |
|
Trading liabilities |
|
|
8,921 |
|
Other borrowed money
(includes mortgage indebtedness and obligations under capitalized leases) |
|
|
70,870 |
|
Subordinated notes and debentures |
|
|
11,059 |
|
Other liabilities |
|
|
15,330 |
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
$ |
470,410 |
|
|
|
|
|
|
Minority interest in consolidated subsidiaries |
|
|
161 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus
|
|
|
0 |
|
Common stock |
|
|
520 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
27,993 |
|
Retained earnings |
|
|
17,428 |
|
Accumulated other comprehensive income |
|
|
(1,659 |
) |
Other equity capital components |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
Total equity capital |
|
|
44,282 |
|
|
|
|
|
|
|
|
|
|
Total liabilities, minority interest, and equity capital |
|
$ |
514,853 |
|
|
|
|
|
I, Howard I. Atkins, EVP & CFO of the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is
true to the best of my knowledge
and belief.
Howard I. Atkins
EVP & CFO
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 appropriate
Federal regulatory authority and is true and correct.
|
|
|
Michael Loughlin |
|
|
John Stumpf
|
|
Directors |
Carrie Tolstedt |
|
|
EX-25.2
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
o CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2)
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
|
|
|
A National Banking Association
|
|
94-1347393 |
(Jurisdiction of incorporation or
|
|
(I.R.S. Employer |
organization if not a U.S. national
|
|
Identification No.) |
bank) |
|
|
|
|
|
101 North Phillips Avenue |
|
|
Sioux Falls, South Dakota
|
|
57104 |
(Address of principal executive offices)
|
|
(Zip code) |
Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth Street and Marquette Avenue, 17th Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name, address and telephone number of agent for service)
CVR ENERGY, INC.
(Exact name of obligor as specified in its charter)
|
|
|
Delaware
|
|
61-1512186 |
(State or other jurisdiction of
|
|
(I.R.S. Employer |
incorporation or organization)
|
|
Identification No.) |
|
|
|
2277 Plaza Drive, Suite 500 |
|
|
Sugar Land, Texas
|
|
77479 |
(Address of principal executive offices)
|
|
(Zip code) |
Subordinated Debt Securities
(Title of the indenture securities)
Item 1. General Information. Furnish the following information as to the trustee:
|
(a) |
|
Name and address of each examining or supervising
authority to which it is subject. |
|
|
|
|
Comptroller of the Currency
Treasury Department
Washington, D.C. |
|
|
|
|
Federal Deposit Insurance Corporation
Washington, D.C. |
|
|
|
|
Federal Reserve Bank of San Francisco
San Francisco, California 94120 |
|
|
(b) |
|
Whether it is authorized to exercise corporate trust
powers. |
|
|
|
|
The trustee is authorized to exercise corporate trust powers. |
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee,
describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as
provided under Item 13.
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of
Eligibility.
|
|
|
Exhibit 1.
|
|
A copy of the Articles of Association of the trustee now in effect.* |
|
|
|
Exhibit 2.
|
|
A copy of the Comptroller of the Currency Certificate of Corporate
Existence and Fiduciary Powers for Wells Fargo Bank, National Association,
dated February 4, 2004.** |
|
|
|
Exhibit 3.
|
|
See Exhibit 2 |
|
|
|
Exhibit 4.
|
|
Copy of By-laws of the trustee as now in effect.*** |
|
|
|
Exhibit 5.
|
|
Not applicable. |
|
|
|
Exhibit 6.
|
|
The consent of the trustee required by Section 321(b) of the Act. |
|
|
|
Exhibit 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. |
|
|
|
Exhibit 8.
|
|
Not applicable. |
|
|
|
Exhibit 9.
|
|
Not applicable. |
|
|
|
* |
|
Incorporated by reference to the exhibit of the same number to the trustees Form T-1 filed as
exhibit 25 to the Form S-4 dated December 30, 2005 of file number 333-130784-06. |
|
** |
|
Incorporated by reference to the exhibit of the same number to the trustees Form T-1 filed
as exhibit 25 to the Form T-3 dated March 3, 2004 of file number 022-28721. |
|
*** |
|
Incorporated by reference to the exhibit of the same number to the trustees Form T-1 filed
as exhibit 25 to the Form S-4 dated May 26, 2005 of file number 333-125274. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells
Fargo Bank, National Association, a national banking association organized and existing under the
laws of the United States of America, has duly caused this statement of eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of
New York on the 9th day of February, 2009.
|
|
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
/s/ Martin G. Reed
|
|
|
Martin G. Reed |
|
|
Vice President |
|
|
EXHIBIT 6
February 9, 2009
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the
undersigned hereby consents that reports of examination of the undersigned made by Federal,
State, Territorial, or District authorities authorized to make such examination may be
furnished by such authorities to the Securities and Exchange Commission upon its request
therefor.
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Very truly yours,
WELLS FARGO BANK, NATIONAL ASSOCIATION
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/s/ Martin G. Reed
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Martin G. Reed |
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Vice President |
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EXHIBIT 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business September 30, 2008, filed in accordance with 12 U.S.C. §161 for National
Banks.
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Dollar Amounts |
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In Millions |
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ASSETS |
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Cash and balances due from depository institutions: |
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Noninterest-bearing balances and currency and coin |
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$ |
12,749 |
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Interest-bearing balances |
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1,984 |
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Securities: |
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Held-to-maturity securities |
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0 |
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Available-for-sale securities |
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76,317 |
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Federal funds sold and securities purchased under agreements to resell: |
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Federal funds sold in domestic offices |
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17,288 |
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Securities purchased under agreements to resell |
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5,183 |
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Loans and lease financing receivables: |
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Loans and leases held for sale |
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11,992 |
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Loans and leases, net of unearned income |
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320,888 |
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LESS: Allowance for loan and lease losses |
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5,414 |
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Loans and leases, net of unearned income and allowance |
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315,474 |
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Trading Assets |
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6,980 |
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Premises and fixed assets (including capitalized leases) |
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4,254 |
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Other real estate owned |
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974 |
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Investments in unconsolidated subsidiaries and associated companies |
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445 |
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Intangible assets |
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Goodwill |
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10,853 |
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Other intangible assets |
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20,410 |
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Other assets |
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29,950 |
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Total assets |
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$ |
514,853 |
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LIABILITIES |
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Deposits: |
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In domestic offices |
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$ |
296,059 |
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Noninterest-bearing |
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72,132 |
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Interest-bearing |
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223,927 |
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In foreign offices, Edge and Agreement subsidiaries, and IBFs |
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60,178 |
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Noninterest-bearing |
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1,122 |
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Interest-bearing |
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59,056 |
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Federal funds purchased and securities sold under agreements to repurchase: |
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Federal funds purchased in domestic offices |
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2,107 |
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Securities sold under agreements to repurchase |
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5,886 |
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Dollar Amounts |
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In Millions |
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Trading liabilities |
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8,921 |
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Other borrowed money
(includes mortgage indebtedness and obligations under capitalized leases) |
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70,870 |
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Subordinated notes and debentures |
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11,059 |
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Other liabilities |
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15,330 |
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Total liabilities |
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$ |
470,410 |
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Minority interest in consolidated subsidiaries |
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161 |
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EQUITY CAPITAL |
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Perpetual preferred stock and related surplus
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0 |
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Common stock |
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520 |
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Surplus (exclude all surplus related to preferred stock) |
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27,993 |
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Retained earnings |
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17,428 |
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Accumulated other comprehensive income |
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(1,659 |
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Other equity capital components |
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0 |
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Total equity capital |
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44,282 |
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Total liabilities, minority interest, and equity capital |
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$ |
514,853 |
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I, Howard I. Atkins, EVP & CFO of the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is
true to the best of my knowledge
and belief.
Howard I. Atkins
EVP & CFO
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 appropriate
Federal regulatory authority and is true and correct.
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Michael Loughlin |
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John Stumpf
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Directors |
Carrie Tolstedt |
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