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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event
reported): January 18, 2024
GLOBAL PARTNERS LP
(Exact name of registrant as specified in its
charter)
Delaware |
001-32593 |
74-3140887 |
(State or other jurisdiction
of incorporation) |
(Commission
File Number) |
(IRS Employer
Identification No.) |
P.O. Box 9161
800 South Street
Waltham, Massachusetts 02454-9161
(Address of Principal Executive Offices)
(781) 894-8800
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common Units representing limited partner interests |
|
GLP |
|
New York Stock Exchange |
Series A Fixed-to-Floating Rate Cumulative Redeemable Perpetual Preferred Units representing limited partner
interests |
|
GLP pr A |
|
New York Stock Exchange |
9.50% Series B Fixed Rate Cumulative Redeemable Perpetual Preferred
Units representing limited partner interests |
|
GLP pr B |
|
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into a Material Definitive
Agreement.
On January 18, 2024, Global Partners LP, a
Delaware limited partnership (the “Partnership”), and GLP Finance Corp., a Delaware corporation (together with the
Partnership, the “Issuers”), completed their previously announced private placement of $450.0 million aggregate principal
amount of the Issuers’ 8.250% senior notes due 2032 (the “Notes”). The Notes were issued pursuant to an indenture,
dated as of January 18, 2024 (the “Indenture”), by and among the Issuers, certain subsidiaries of the Partnership
as guarantors (the “Guarantors”) and Regions Bank, as trustee.
The Notes will mature on January 15, 2032
with interest accruing at a rate of 8.250% per annum. Interest will be payable beginning July 15, 2024 and thereafter semi-annually
in arrears on January 15 and July 15 of each year. The Notes are guaranteed on a joint and several senior unsecured basis
by each of the Guarantors to the extent set forth in the Indenture. Upon a continuing event of default, the trustee or the holders
of at least 25% in principal amount of the outstanding Notes may declare the Notes immediately due and payable, except that an event of
default resulting from entry into a bankruptcy, insolvency or reorganization with respect to the Issuers, any restricted subsidiary of
the Partnership that is a significant subsidiary or any group of its restricted subsidiaries that, taken together, would constitute a
significant subsidiary of the Partnership, will automatically cause the outstanding Notes to become due and payable.
At any time prior to January 15, 2027, the
Issuers have the option to redeem up to 35% of the Notes, in an amount not greater than the net cash proceeds of certain equity offerings,
at a redemption price (expressed as a percentage of principal amount) of 108.250%, plus accrued and unpaid interest, if any, to the redemption
date. The Issuers will have the option to redeem all or part of the Notes at any time on or after January 15, 2027, at the
redemption prices (expressed as percentages of principal amount) of 104.125% for the twelve-month period beginning January 15, 2027,
102.063% for the twelve-month period beginning January 15, 2028, and 100% beginning on January 15, 2029 and at any time thereafter,
plus accrued and unpaid interest, if any, to the redemption date. In addition, prior to January 15, 2027, the Issuers may redeem
all or part of the Notes at a redemption price equal to the sum of the principal amount thereof, plus a make whole premium, plus accrued
and unpaid interest, if any, to the redemption date. The holders of the Notes may require the Issuers to repurchase the Notes following
certain asset sales or a Change of Control Triggering Event (as defined in the Indenture) at the prices and on the terms specified in
the Indenture.
The Indenture contains covenants that limit the
Partnership’s ability to, among other things, incur additional indebtedness and issue preferred securities, make certain dividends
and distributions, make certain investments and other restricted payments, restrict distributions by its subsidiaries, create liens, sell
assets or merge with other entities. Events of default under the Indenture include, but are not limited to, (i) a default in payment
of principal of, or interest or premium, if any, on, the Notes, (ii) breach of the Partnership’s covenants under the Indenture,
(iii) certain events of bankruptcy and insolvency, (iv) any payment default or acceleration of indebtedness of the Partnership
or certain subsidiaries if the total amount of such indebtedness unpaid or accelerated exceeds $50.0 million and (v) failure to pay
within 60 days uninsured final judgments exceeding $50.0 million.
A copy of the Indenture is filed as Exhibit 4.1
to this Current Report on Form 8-K and is incorporated into this Item 1.01 by reference. The description of the Indenture contained
herein is qualified in its entirety by the full text of such exhibit.
Item 2.03 Creation of a Direct
Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information included, or incorporated by reference,
in Item 1.01 of this Current Report is incorporated by reference into this Item 2.03.
Item 9.01 Financial Statements
and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
|
GLOBAL PARTNERS LP |
|
|
|
|
By: |
Global GP LLC |
|
|
its general partner |
|
|
|
Dated: January 18, 2024 |
By: |
/s/ Sean T. Geary |
|
|
Sean T. Geary |
|
|
Chief Legal Officer and Secretary |
Exhibit 4.1
Execution Version
GLOBAL PARTNERS LP,
GLP FINANCE CORP.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HEREOF
______________________________
8.250% SENIOR NOTES DUE 2032
______________________________
INDENTURE
Dated as of January 18, 2024
______________________________
REGIONS BANK
As Trustee
TABLE OF CONTENTS
|
Page |
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
Section 1.01. |
Definitions |
1 |
Section 1.02. |
Other Definitions |
27 |
Section 1.03. |
[Reserved] |
28 |
Section 1.04. |
Rules of Construction |
28 |
|
|
|
ARTICLE 2 THE NOTES |
28 |
Section 2.01. |
Form and Dating |
28 |
Section 2.02. |
Execution and Authentication |
28 |
Section 2.03. |
Registrar and Paying Agent |
29 |
Section 2.04. |
Paying Agent to Hold Money in
Trust |
29 |
Section 2.05. |
Holder Lists |
30 |
Section 2.06. |
Transfer and Exchange |
30 |
Section 2.07. |
Replacement Notes |
30 |
Section 2.08. |
Outstanding Notes |
31 |
Section 2.09. |
Temporary Notes |
31 |
Section 2.10. |
Cancellation |
31 |
Section 2.11. |
Defaulted Interest |
31 |
Section 2.12. |
CUSIP Numbers |
32 |
Section 2.13. |
Issuance of Additional Notes |
32 |
|
|
|
ARTICLE 3 REDEMPTION AND PREPAYMENT |
32 |
Section 3.01. |
Notices to Trustee |
32 |
Section 3.02. |
Selection of Notes to be Redeemed |
33 |
Section 3.03. |
Notice of Redemption |
33 |
Section 3.04. |
Effect of Notice of Redemption |
34 |
Section 3.05. |
Deposit of Redemption Price |
34 |
Section 3.06. |
Notes Redeemed in Part |
35 |
Section 3.07. |
Optional Redemption |
35 |
Section 3.08. |
Mandatory Redemption; Open Market
Purchases |
36 |
Section 3.09. |
Offer to Purchase by Application
of Excess Proceeds |
36 |
|
|
|
ARTICLE 4 COVENANTS |
38 |
Section 4.01. |
Payment of Notes |
38 |
Section 4.02. |
Maintenance of Office or Agency |
38 |
Section 4.03. |
Reports |
39 |
Section 4.04. |
Compliance Certificate |
40 |
Section 4.05. |
Taxes |
40 |
Section 4.06. |
Stay, Extension and Usury Laws |
41 |
Section 4.07. |
Limitation on Restricted Payments |
41 |
Section 4.08. |
Limitation on Dividend and Other
Payment Restrictions Affecting Subsidiaries |
44 |
Section 4.09. |
Limitation on Incurrence of
Indebtedness and Issuance of Preferred Stock |
46 |
Section 4.10. |
Limitation on Asset Sales |
50 |
Section 4.11. |
Limitation on Transactions
with Affiliates |
52 |
Section 4.12. |
Limitation on Liens |
53 |
Section 4.13. |
Additional Subsidiary Guarantees |
54 |
Section 4.14. |
Corporate Existence |
54 |
Section 4.15. |
Offer to Repurchase Upon Change
of Control Triggering Event |
54 |
Section 4.16. |
Permitted Business Activities |
57 |
Section 4.17. |
Covenant Suspension |
57 |
Section 4.18. |
Designation of Restricted and
Unrestricted Subsidiaries |
58 |
|
|
|
ARTICLE 5
SUCCESSORS |
58 |
Section 5.01. |
Merger, Consolidation or Sale
of Assets |
58 |
Section 5.02. |
Successor Substituted |
60 |
|
|
|
ARTICLE 6
DEFAULTS AND REMEDIES |
60 |
Section 6.01. |
Events of Default |
60 |
Section 6.02. |
Acceleration |
62 |
Section 6.03. |
Other Remedies |
63 |
Section 6.04. |
Waiver of Past Defaults |
63 |
Section 6.05. |
Control by Majority |
63 |
Section 6.06. |
Limitation on Suits |
63 |
Section 6.07. |
Rights of Holders of Notes to
Receive Payment |
64 |
Section 6.08. |
Collection Suit by Trustee |
64 |
Section 6.09. |
Trustee May File Proofs
of Claim |
64 |
Section 6.10. |
Priorities |
65 |
Section 6.11. |
Undertaking for Costs |
65 |
|
|
|
ARTICLE 7
TRUSTEE |
65 |
Section 7.01. |
Duties of Trustee |
65 |
Section 7.02. |
Rights of Trustee |
66 |
Section 7.03. |
Individual Rights of Trustee |
68 |
Section 7.04. |
Trustee’s Disclaimer |
68 |
Section 7.05. |
Notice of Defaults |
68 |
Section 7.06. |
[Reserved] |
68 |
Section 7.07. |
Compensation and Indemnity |
68 |
Section 7.08. |
Replacement of Trustee |
69 |
Section 7.09. |
Successor Trustee by Merger, etc. |
70 |
Section 7.10. |
Eligibility; Disqualification |
71 |
|
|
|
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
71 |
Section 8.01. |
Option to Effect Legal Defeasance
or Covenant Defeasance |
71 |
Section 8.02. |
Legal Defeasance and Discharge |
71 |
Section 8.03. |
Covenant Defeasance |
72 |
Section 8.04. |
Conditions to Legal or Covenant
Defeasance |
72 |
Section 8.05. |
Deposited Money and Government
Securities to be Held in Trust; Other Miscellaneous Provisions |
73 |
Section 8.06. |
Repayment to Issuers |
74 |
Section 8.07. |
Reinstatement |
74 |
Section 8.08. |
Discharge |
74 |
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER |
76 |
Section 9.01. |
Without Consent
of Holders of Notes |
76 |
Section 9.02. |
With Consent of Holders of Notes |
77 |
Section 9.03. |
[Reserved] |
78 |
Section 9.04. |
Effect of Consents |
78 |
Section 9.05. |
Notation on or Exchange of Notes |
78 |
Section 9.06. |
Trustee to Sign Amendments, etc. |
78 |
|
|
|
ARTICLE 10
GUARANTEES OF NOTES |
79 |
Section 10.01. |
Subsidiary Guarantees |
79 |
Section 10.02. |
Execution and Delivery |
80 |
Section 10.03. |
Guarantors May Consolidate, etc.,
on Certain Terms |
80 |
Section 10.04. |
Releases of Subsidiary Guarantees |
81 |
Section 10.05. |
[Reserved] |
81 |
Section 10.06. |
Limitation on Guarantor Liability |
81 |
|
|
|
ARTICLE 11
MISCELLANEOUS |
81 |
Section 11.01. |
Trust Indenture Act Not Applicable |
81 |
Section 11.02. |
Notices |
82 |
Section 11.03. |
[Reserved] |
83 |
Section 11.04. |
Certificate and Opinion as to
Conditions Precedent |
83 |
Section 11.05. |
Statements Required in Certificate
or Opinion |
83 |
Section 11.06. |
Rules by Trustee and Agents |
84 |
Section 11.07. |
No Personal Liability of Directors,
Officers, Employees and Unitholders |
84 |
Section 11.08. |
Governing Law; Waiver of Jury
Trail |
84 |
Section 11.09. |
No Adverse Interpretation of
Other Agreements |
84 |
Section 11.10. |
Successors |
85 |
Section 11.11. |
Severability |
85 |
Section 11.12. |
Table of Contents, Headings, etc. |
85 |
Section 11.13. |
Counterparts; Electronic Signatures |
85 |
Section 11.14. |
Acts of Holders |
85 |
Section 11.15. |
Patriot Act |
87 |
Section 11.16. |
When Notes Disregarded |
87 |
APPENDIX AND ANNEX
RULE 144A/REGULATION S APPENDIX |
App. - 1 |
|
|
|
EXHIBIT 1 Form of
Note |
|
|
|
ANNEX A |
Form of Supplemental Indenture |
A - 1 |
This Indenture, dated as of
January 18, 2024, is among Global Partners LP, a Delaware limited partnership (the “Company”), GLP Finance Corp., a Delaware
corporation (“Finance Corp.” and, together with the Company, the “Issuers”), the guarantors listed on the signature
pages hereof (each, a “Guarantor” and, collectively, the “Guarantors”) and Regions Bank, an Alabama state-chartered
banking corporation, as trustee (the “Trustee”).
The Issuers, the Guarantors
and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Issuers’
Initial Notes and Additional Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
“Acquired Debt”
means, with respect to any specified Person:
(1) Indebtedness
of any other Person existing at the time such other Person was merged with or into or became a Subsidiary of such specified Person, whether
or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a
Subsidiary of, such specified Person, but excluding Indebtedness which is extinguished, retired or repaid in connection with such Person
merging with or into or becoming a Subsidiary of such specified Person; and
(2) Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.
“Additional Notes”
means, subject to the Company’s compliance with Section 4.09, 8.250% Senior Notes due 2032 issued from time to time after the
Initial Issuance Date under the terms of this Indenture (other than pursuant to Section 2.06, 2.07, 2.09 or 3.06 of this Indenture).
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided, however, that beneficial ownership of 10% or more of
the Voting Stock of a Person will be deemed to be control by the other Person; and further, that any third Person which also beneficially
owns 10% or more of the Voting Stock of a specified Person shall not be deemed to be an Affiliate of either the specified Person or the
other Person merely because of such common ownership in such specified Person. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.
“Agent”
means any Registrar or Paying Agent.
“Agent Members”
has the meaning provided in the Appendix.
“Applicable Law,”
except as the context may otherwise require, means all applicable laws, rules, regulations, ordinances, judgments, decrees, injunctions,
writs and orders of any court or governmental or congressional agency or authority and rules, regulations, orders, licenses and permits
of any United States federal, state, municipal, regional, or other governmental body, instrumentality, agency or authority.
“Applicable Procedures”
means, with respect to any transfer or exchange of beneficial interests in a Global Note, the rules and procedures of the Depository
that apply to such transfer and exchange.
“Asset Sale”
means:
(1) the
sale, lease, conveyance or other disposition of any properties or assets (including by way of a sale and leaseback transaction); provided,
however, that the disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken
as a whole will be governed by the provisions of Section 4.15 and/or the provisions of Section 5.01 and not by the provisions
of Section 4.10; and
(2) the
issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or the sale of Equity Interests in any of its Restricted
Subsidiaries, other than preferred stock or Disqualified Stock issued in compliance with Section 4.09.
Notwithstanding the preceding,
the following items will not be deemed to be Asset Sales:
(1) any
single transaction or series of related transactions that involves properties or assets having a fair market value of less than $25.0
million;
(2) a
transfer of properties or assets between or among any of the Company and its Restricted Subsidiaries;
(3) an
issuance or sale of Equity Interests by a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(4) the
sale, lease or other disposition of equipment, inventory, accounts receivable or other properties or assets in the ordinary course of
business;
(5) the
sale or other disposition of cash or Cash Equivalents, Hedging Contracts or other financial instruments in the ordinary course of business;
(6) a
Restricted Payment that is permitted by Section 4.07 or a Permitted Investment;
(7) the
creation or perfection of a Lien that is not prohibited by Section 4.12;
(8) dispositions
in connection with Permitted Liens;
(9) surrender
or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind;
(10) the
grant in the ordinary course of business of any non-exclusive license of patents, trademarks, registrations therefor and other similar
intellectual property;
(11) dispositions
of Capital Stock or Indebtedness of an Unrestricted Subsidiary, the primary assets of which are not cash and Cash Equivalents; and
(12) an
Asset Swap.
“Asset Swap”
means any substantially contemporaneous (and in any event occurring within 360 days of each other) purchase and sale or exchange of any
assets or properties used or useful in a Permitted Business between the Company or any of its Restricted Subsidiaries and another Person;
provided that any cash received must be applied in accordance with Section 4.10 as if the Asset Swap were an Asset Sale.
“Available Cash”
has the meaning assigned to such term in the Partnership Agreement, as in effect on the Initial Issuance Date.
“Bankruptcy Law”
means Title 11, United States Code, as may be amended from time to time, or any similar federal or state law for the relief of debtors.
“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person”
will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition.
The terms “Beneficially Owns” and “Beneficially Owned” have correlative meanings. For purposes of this definition,
a Person shall be deemed not to Beneficially Own securities that are the subject of a stock purchase agreement, merger agreement or similar
agreement until consummation of the transactions or, as applicable, series of related transactions contemplated thereby.
“Board of Directors”
means:
(1) with
respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such
board;
(2) with
respect to a partnership, the board of directors or board of managers of the general partner of the partnership or, if such general partner
is itself a limited partnership, then the board of directors or board of managers of its general partner;
(3) with
respect to a limited liability company, the board of managers or directors, the managing member or members or any controlling committee
of managing members thereof; and
(4) with
respect to any other Person, the board or committee of such Person serving a similar function.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the applicable Person to have been duly adopted by
the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Borrowing Base”
means, with respect to any Person at any date of determination, an amount equal to the sum of:
(1) 100%
of unrestricted cash and cash equivalents included in such Person’s most recent quarterly or annual consolidated balance sheet prepared
in accordance with GAAP; plus
(2) 90%
of net equity in the aggregate amount of all sums deposited by such Person and its Restricted Subsidiaries with investment grade commodities
brokers on nationally recognized exchanges, after deducting therefrom the aggregate amount of all claims, disputes, contras and offsets
(contingent or otherwise) by such brokers or any other Person against such deposits, in each case as included in such Person’s most
recent quarterly or annual consolidated balance sheet prepared in accordance with GAAP; plus
(3) 90%
of accounts receivable, net of (a) any allowance for doubtful accounts or other adjustments, included in such Person’s most
recent quarterly or annual consolidated balance sheet prepared in accordance with GAAP and (b) any receivables sold by a Person or
its Restricted Subsidiaries to a third party (including a trust) in connection with a receivables securitization; plus
(4) 90%
of inventory included in such Person’s most recent quarterly or annual consolidated balance sheet prepared in accordance with GAAP;
plus
(5) 90%
of the fair market value determined on a mark-to-market basis (net of storage and transportation costs) of fixed forward sales contracts
included in such Person’s most recent quarterly or annual consolidated balance sheet prepared in accordance with GAAP (exclusive,
for the avoidance of doubt, of any forward sales contracts pursuant to which future services, goods or products are provided by such Person
or its Restricted Subsidiaries in exchange for upfront payments); provided that, if such amount is a negative number, 100% of such negative
amount shall be deducted from the Borrowing Base; plus
(6) 40%
of property, plant and equipment, net of any depreciation, amortization or other adjustments, included in such Person’s most recent
quarterly or annual consolidated balance sheet prepared in accordance with GAAP;
provided that the cash, cash equivalents, margin
deposits, accounts receivable, inventory, fixed forward sales contracts, property, plant and equipment of any Person that is not a Restricted
Subsidiary shall be excluded from the Borrowing Base.
“Business Day”
means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York or another place of payment
are authorized or required by law to close.
“Capital Stock”
means:
(1) in
the case of a corporation, corporate stock;
(2) in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock;
(3) in
the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
“Cash Equivalents”
means:
(1) United
States dollars;
(2) securities
issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States
government (provided that the full faith and credit of the United States is pledged in support of those securities) having maturities
of not more than six months from the date of acquisition;
(3) marketable
general obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality
thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having a credit rating
of “A” or better from either S&P or Moody’s;
(4) certificates
of deposit, demand deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’
acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any lender party to the Credit Agreement
or with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B”
or better;
(5) repurchase
obligations with a term of not more than seven days for underlying securities of the types described in clauses (2), (3) and (4) above
entered into with any financial institution meeting the qualifications specified in clause (4) above;
(6) commercial
paper having one of the two highest ratings obtainable from Moody’s or S&P and in each case maturing within six months after
the date of acquisition; and
(7) money
market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (6) of
this definition.
“Change of Control
Triggering Event” means the occurrence of any of the following:
(1) (a) the
direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the properties or assets (including Capital Stock of the Restricted Subsidiaries)
of the Company and its Restricted Subsidiaries taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of
the Exchange Act), and (b) only if the Notes are rated by at least one of S&P or Moody’s, a Rating Decline within 90 days
of the consummation of such transaction;
(2) the
adoption of a plan relating to the liquidation or dissolution of the Company or removal of the General Partner by the limited partners
of the Company; or
(3) (a) the
consummation of any transaction (including, without limitation, any merger or consolidation), in one or a series of related transactions,
the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), excluding
the Slifka Group, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of either the General Partner
or of the Company, measured by voting power rather than number of shares, units or the like, and (b) only if the Notes are rated
by at least one of S&P or Moody’s, a Rating Decline within 90 days thereof.
Notwithstanding the preceding,
a conversion of the Company or any of its Restricted Subsidiaries from a limited partnership, corporation, limited liability company or
other form of entity to a limited liability company, corporation, limited partnership or other form of entity or an exchange of all of
the outstanding Equity Interests in one form of entity for Equity Interests in another form of entity shall not constitute a Change of
Control Triggering Event, so long as immediately following such conversion or exchange the “persons” (as that term is used
in Section 13(d)(3) of the Exchange Act) who Beneficially Owned the Capital Stock of the Company immediately prior to such transactions
continue to Beneficially Own in the aggregate more than 50% of the Voting Stock of such entity, or continue to Beneficially Own sufficient
Equity Interests in such entity to elect a majority of its directors, managers, trustees or other persons serving in a similar capacity
for such entity or its general partner, as applicable, and, in either case no “person,” other than the Slifka Group, Beneficially
Owns more than 50% of the Voting Stock of such entity or its general partner, as applicable.
“Clearstream”
means Clearstream Banking, société anonyme, or any successor securities clearing agency.
“Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“Commission”
or “SEC” means the Securities and Exchange Commission.
“Consolidated Cash
Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period
plus:
(1) an
amount equal to any net loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent
such losses were deducted in computing such Consolidated Net Income; plus
(2) provision
for Taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision
for Taxes was deducted in computing such Consolidated Net Income; plus
(3) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized
(including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments associated with Finance Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings), and net of the
effect of all payments made or received pursuant to interest rate Hedging Contracts, to the extent that any such expense was deducted
in computing such Consolidated Net Income; plus
(4) depreciation
and amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior
period), impairment, non-cash equity based compensation expense and other non-cash items (excluding any such non-cash item to the extent
that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation and amortization,
impairment and other non-cash items that were deducted in computing such Consolidated Net Income; plus
(5) unrealized
non-cash losses resulting from foreign currency balance sheet adjustments required by GAAP to the extent such losses were deducted in
computing such Consolidated Net Income; plus
(6) all
extraordinary, unusual or non-recurring items of loss or expense, to the extent that any such item was deducted in computing such Consolidated
Net Income; minus
(7) non-cash
items increasing such Consolidated Net Income for such period, other than items that were accrued in the ordinary course of business,
in each case, on a consolidated basis and determined
in accordance with GAAP.
“Consolidated Net
Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP, provided that:
(1) the
Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting
will be included, but only to the extent of the amount of dividends or distributions paid in cash to the specified Person or a Restricted
Subsidiary of the Person;
(2) the
Net Income of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, partners or members;
(3) the
cumulative effect of a change in accounting principles will be excluded;
(4) unrealized
losses and gains under Hedging Contracts included in the determination of Consolidated Net Income, including, without limitation those
resulting from the application of the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 815 will be
excluded; and
(5) any
nonrecurring charges relating to any premium or penalty paid, write off of deferred finance costs or other charges in connection with
redeeming or retiring any Indebtedness prior to its Stated Maturity will be excluded.
“Consolidated Net
Tangible Assets” means, with respect to any Person at any date of determination, the aggregate amount of total assets included
in such Person’s most recent quarterly or annual consolidated balance sheet prepared in accordance with GAAP less applicable reserves
reflected in such balance sheet, after deducting the following amounts: (a) all current liabilities reflected in such balance sheet,
and (b) all goodwill, trademarks, patents, unamortized debt discounts and expenses and other like intangibles reflected in such balance
sheet.
The term “continuing”
means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.
“Corporate Trust
Office of the Trustee” means the office of the Trustee in the City of Atlanta at which at any time its corporate trust business
shall be administered, which office at the date hereof is located at 1180 West Peachtree Street, Suite 1200, Atlanta, Georgia 30309,
Attn: Corporate Trust Department, or such other address in the City of Atlanta as the Trustee may designate from time to time by
notice to the Holders and the Issuers, or the principal corporate trust office in the City of Atlanta of any successor Trustee (or such
other address as a successor Trustee may designate from time to time by notice to the Holders and the Issuers).
“Credit Agreement”
means that certain Third Amended and Restated Credit Agreement, dated as of April 25, 2017, among Global Operating LLC, the Company
and the other subsidiaries of the Company party thereto, Bank of America, N.A., as Administrative Agent, and the other lenders party thereto,
as amended as of the Initial Issuance Date, including any related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as further amended, restated, modified, renewed, refunded, replaced or refinanced from
time to time.
“Credit Facilities”
means one or more debt facilities (including, without limitation, the Credit Agreement), indentures, commercial paper facilities or secured
capital markets financings, in each case with banks or other institutional lenders or investors providing for revolving credit loans,
term loans, debt securities, receivables financing (including through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables), letters of credit or secured capital markets financings, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced (including refinancing with any capital markets transaction) in
whole or in part from time to time.
“Custodian”
means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“Customary Recourse
Exceptions” means, with respect to any Non-Recourse Debt of an Unrestricted Subsidiary or Joint Venture, exclusions from the
exculpation provisions with respect to such Non-Recourse Debt for fraud, misapplication of cash, waste, willful destruction, bad faith
and other circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements
in non-recourse financings.
“Default”
means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Depository”
has the meaning provided in the Appendix.
“Designated Non-cash
Consideration” means the fair market value of non-cash consideration received by the Company or a Restricted Subsidiary in connection
with an Asset Sale that is so designated as Designated Non-cash Consideration, less the amount of Cash Equivalents received in connection
with a subsequent sale of such Designated Non-cash Consideration.
“Disqualified Stock”
means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable,
in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part,
on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to
repurchase or redeem such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock
if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07.
“Distributable Cash
Flow” has the meaning assigned to such term in the Partnership Agreement, as in effect on the Initial Issuance Date.
“Domestic Subsidiary”
means any Restricted Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or
the District of Columbia.
“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
“Equity Offering”
means any public or private sale of Capital Stock (other than Disqualified Stock and other than to a Subsidiary of the Company) made for
cash on a primary basis by the Company after the Initial Issuance Date (other than a registration statement on Form S-4 or Form S-8
or otherwise relating to equity securities issuable under any employee benefit plan of the Company).
“Euroclear”
means the Euroclear System or any successor securities clearing agency.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Existing Indebtedness”
means the aggregate principal amount of Indebtedness of the Company and its Restricted Subsidiaries (other than (i) the Notes and
the Subsidiary Guarantees, (ii) Indebtedness under the Credit Agreement, which is considered incurred under clause (1) of Permitted
Debt, and (iii) intercompany Indebtedness) in existence on the Initial Issuance Date, until such amounts are repaid.
The term “fair market
value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving
distress or necessity of either party, determined in good faith by the Board of Directors of the Company in the case of amounts of $30.0
million or more and otherwise by an officer of the General Partner.
“Finance Lease Obligation”
means, at the time any determination is to be made, the amount of the liability in respect of a finance lease that would at that time
be required to be capitalized on a balance sheet in accordance with GAAP.
“Fixed Charge Coverage
Ratio” means with respect to any specified Person for any four-quarter reference period, the ratio of the Consolidated Cash
Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any
of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary working
capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the applicable four-quarter reference
period and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, guarantee,
repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the
proceeds therefrom as if the same had occurred at the beginning of such period. If any Indebtedness bears a floating rate of interest
and is being given pro forma effect, the interest expense on such Indebtedness will be calculated as if the average rate in effect from
the beginning of such period to the Calculation Date had been the applicable rate for the entire period (taking into account any interest
Hedging Contract applicable to such Indebtedness, but if the remaining term of such interest Hedging Contract is less than 12 months,
then such interest Hedging Contract shall only be taken into account for that portion of the period equal to the remaining term thereof).
If any Indebtedness that is being given pro forma effect bears an interest rate at the option of such Person, the interest rate shall
be calculated by applying such optional rate chosen by such Person. Interest on Indebtedness that may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been
based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as such Person may designate.
In addition, for purposes
of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions
that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers, consolidations or otherwise
(including acquisitions of assets used in a Permitted Business), and including in each case any related financing transactions (including
repayment of Indebtedness) during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation
Date, will be given pro forma effect as if they had occurred on the first day of the four-quarter reference period, including any Consolidated
Cash Flow and any pro forma expense and cost reductions that have occurred or are reasonably expected to occur within the next 12 months,
in the reasonable judgment of the chief financial or accounting officer of the General Partner (regardless of whether those cost savings
or operating improvements could then be reflected in pro forma financial statements in accordance with Regulation S-X promulgated under
the Securities Act or any other regulation or policy of the Commission related thereto);
(2) the
Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed
of prior to the Calculation Date, will be excluded;
(3) the
Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not
be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;
(4) any
Person that is a Restricted Subsidiary of the specified Person on the Calculation Date will be deemed to have been a Restricted Subsidiary
of the specified Person at all times during such four-quarter period;
(5) any
Person that is not a Restricted Subsidiary of the specified Person on the Calculation Date will be deemed not to have been a Restricted
Subsidiary of the specified Person at any time during such four-quarter period; and
(6) interest
income reasonably anticipated by such Person to be received during the applicable four-quarter period from cash or Cash Equivalents held
by such Person or any Restricted Subsidiary of such Person, which cash or Cash Equivalents exist on the Calculation Date or will exist
as a result of the transaction giving rise to the need to calculate the Fixed Charge Coverage Ratio, will be included.
“Fixed Charges”
means, with respect to any specified Person for any period, the sum, without duplication, of:
(1) the
consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (including, without
limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments associated with Finance Lease Obligations, commissions, discounts
and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings), and net of the effect of
all payments made or received pursuant to interest rate Hedging Contracts; plus
(2) the
consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus
(3) any
interest expense on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured
by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such guarantee or Lien is called upon; plus
(4) all
dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Stock of such Person or on any preferred
securities of any of its Restricted Subsidiaries, other than dividends on such Equity Interests payable solely in Equity Interests of
the payor (other than Disqualified Stock) or to such Person or a Restricted Subsidiary of such Person,
in each case, on a consolidated basis and determined
in accordance with GAAP.
“Foreign Subsidiary”
means any Restricted Subsidiary of the Company that is not a Domestic Subsidiary.
“GAAP”
means generally accepted accounting principles in the United States, which are in effect from time to time.
“General Partner”
means Global GP LLC, a Delaware limited liability company, and its successors and permitted assigns as general partner of the Company
or as the business entity with the ultimate authority to manage the business and operations of the Company.
“Global Note”
has the meaning provided in the Appendix.
“Government Securities”
means direct obligations of, or obligations guaranteed by, the United States of America for the payment of which guarantee or obligations
the full faith and credit of the United States is pledged.
“Governmental Authority”
means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial,
Taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the
European Union or the European Central Bank).
The term “guarantee”
means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect,
in any manner including, without limitation, by way of a pledge of assets, acting as co-obligor or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness. When used as a verb, “guarantee” has a correlative
meaning.
“Guarantors”
means each of (a) the Subsidiaries of the Company executing this Indenture as initial Guarantors and (b) any other Restricted
Subsidiary of the Company that becomes a Guarantor in accordance with the provisions of this Indenture and their respective successors
and assigns, in each case until such Guarantor is released from its Subsidiary Guarantee in accordance with this Indenture.
“Hedging Contracts”
means, with respect to any specified Person:
(1) interest
rate swap agreements, interest rate cap agreements and interest rate collar agreements entered into with one or more financial institutions
and designed to protect the Person or any of its Restricted Subsidiaries entering into the agreement against fluctuations in interest
rates with respect to Indebtedness incurred;
(2) foreign
exchange contracts and currency protection agreements entered into with one or more financial institutions and designed to protect the
Person or any of its Restricted Subsidiaries entering into the agreement against fluctuations in currency exchanges rates with respect
to Indebtedness incurred;
(3) any
commodity futures contract, commodity option or other similar agreement or arrangement designed to protect against fluctuations in the
price of Hydrocarbons used, produced, processed or sold by that Person or any of its Restricted Subsidiaries at the time; and
(4) other
agreements or arrangements designed to protect such Person or any of its Restricted Subsidiaries against fluctuations in interest rates,
commodity prices or currency exchange rates;
and in each case are entered into only in the
normal course of business and not for speculative purposes.
“Holder”
or “Holder of a Note” means a Person in whose name a Note is registered.
“Hydrocarbons”
means (i) crude oil, natural gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous
hydrocarbons and all constituents, elements or compounds thereof and products refined or processed therefrom and (ii) corn, ethanol
and other agricultural commodities used in the process of making fuels, and other blendstocks and renewable fuels.
“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:
(1) in
respect of borrowed money;
(2) evidenced
by bonds, notes, debentures or similar instruments;
(3) in
respect of all outstanding letters of credit issued for the account of such Person that support obligations that constitute Indebtedness
(provided that the amount of such letters of credit included in Indebtedness shall not exceed the amount of the Indebtedness being supported)
and, without duplication, the unreimbursed amount of all drafts drawn under letters of credit issued for the account of such Person;
(4) in
respect of bankers’ acceptances;
(5) representing
Finance Lease Obligations;
(6) representing
the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or
trade payable; or
(7) representing
any obligations under Hedging Contracts,
if and to the extent any of the preceding items
(other than letters of credit and obligations under Hedging Contracts) would appear as a liability upon a balance sheet of the specified
Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of other Persons secured
by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent
not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person. For the avoidance of doubt, the
term “Indebtedness” excludes any obligation arising from any agreement providing for indemnities, purchase price adjustments,
holdbacks, contingency payment obligations based on the performance of the acquired or disposed assets or similar obligations (other than
guarantees of Indebtedness) incurred by the specified Person in connection with the acquisition or disposition of assets.
The amount of any Indebtedness
outstanding as of any date will be:
(1) the
accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) in
the case of obligations under any Hedging Contracts, the termination value of the agreement or arrangement giving rise to such obligations
that would be payable by such Person at such date; and
(3) the
principal amount of the Indebtedness, together with any interest on the Indebtedness that is more than 30 days past due, in the case of
any other Indebtedness.
“Indenture”
means this Indenture, as amended or supplemented from time to time.
“Initial Issuance
Date” means the first day that Notes are issued under this Indenture.
“Initial Notes”
has the meaning provided in the Appendix.
“Investment Grade
Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.
“Investments”
means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms
of loans (including guarantees or other obligations), advances or capital contributions (excluding (1) commission, travel and similar
advances to officers and employees made in the ordinary course of business and (2) advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of the lender), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP. If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of
any such sale or disposition in an amount equal to the fair market value of the Equity Interests of such Restricted Subsidiary not sold
or disposed of in an amount determined as provided in the final paragraph of Section 4.07. The acquisition by the Company or any
Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to be an Investment made by the Company
or such Subsidiary in such third Person in an amount equal to the fair market value of the Investment held by the acquired Person in such
third Person on the date of any such acquisition in an amount determined as provided in the final paragraph of Section 4.07.
“Joint Venture”
means any Person that is not a direct or indirect Subsidiary of the Company in which the Company or any of its Restricted Subsidiaries
makes any Investment.
“Legal Holiday”
means any calendar day other than a Business Day. If a payment date is a Legal Holiday, payment may be made on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening period.
“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under Applicable Law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction other than a
precautionary financing statement respecting a lease not intended as a security agreement.
“Make Whole Premium”
means, with respect to a Note at any time, the excess, if any, of (a) the present value at such time of (i) the redemption price
of such Note at January 15, 2027 pursuant to Section 3.07(a) plus (ii) any required interest payments due on such
Note through January 15, 2027 (except for currently accrued and unpaid interest), computed using a discount rate equal to the Treasury
Rate as of such time plus 50 basis points, discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months), over (b) the principal amount of such Note. The Trustee shall have no duty to calculate or verify the
Make Whole Premium.
“Moody’s”
means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Net Income”
means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction
in respect of preferred stock dividends, excluding, however:
(1) any
gain (but not loss), together with any related provision for Taxes on such gain (but not loss), realized in connection with: (a) any
Asset Sale; or (b) the disposition of any securities by such Person or the extinguishment of any Indebtedness of such Person; and
(2) any
extraordinary gain (but not loss), together with any related provision for Taxes on such extraordinary gain (but not loss).
“Net Proceeds”
means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net
of:
(1) the
direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees and sales commissions,
severance costs and any relocation expenses incurred as a result of the Asset Sale;
(2) Taxes
paid or payable as a result of the Asset Sale, in each case, after taking into account any available Tax credits or deductions and any
Tax sharing arrangements;
(3) amounts
required to be applied to the repayment of Indebtedness secured by a Lien on the properties or assets that were the subject of such Asset
Sale; and
(4) any
amounts to be set aside in any reserve established in accordance with GAAP or any amount placed in escrow, in either case for adjustment
in respect of the sale price of such properties or assets or for liabilities associated with such Asset Sale and retained by the Company
or any of its Restricted Subsidiaries until such time as such reserve is reversed or such escrow arrangement is terminated, in which case
Net Proceeds shall include only the amount of the reserve so reversed or the amount returned to the Company or its Restricted Subsidiaries
from such escrow arrangement, as the case may be.
“Non-Recourse Debt”
means Indebtedness:
(1) as
to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind under any undertaking,
agreement or instrument that would constitute Indebtedness or (b) is directly or indirectly liable as a guarantor or otherwise, except
for Customary Recourse Exceptions;
(2) no
default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Notes) of
the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness
to be accelerated or payable prior to its Stated Maturity; and
(3) as
to which the lenders have no contractual recourse to the Capital Stock or assets of the Company or any of its Restricted Subsidiaries
except for Customary Recourse Exceptions or as contemplated by clause (9) of the definition of Permitted Liens.
For purposes of determining
compliance with Section 4.09, in the event that any Non-Recourse Debt of any of the Company’s Unrestricted Subsidiaries ceases
to be Non-Recourse Debt of such Unrestricted Subsidiary, such event will be deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company.
“Notes”
has the meaning specified in the Appendix.
“Notes Custodian”
has the meaning specified in the Appendix.
“Obligations”
means any principal, premium, if any, interest (including interest accruing on or after the filing of any petition in bankruptcy or for
reorganization, whether or not a claim for post-filing interest is allowed in such proceeding), penalties, fees, charges, expenses, indemnifications,
reimbursement obligations, damages, guarantees, and other liabilities or amounts payable under the documentation governing any Indebtedness
or in respect thereto.
“Offering Memorandum”
means the final offering memorandum of the Issuers dated January 3, 2024 relating to the offering of the Initial Notes.
“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any Vice
President of such Person or, with respect to the Company, the General Partner, or, with respect to any other partnership, its general
partner.
“Officers’
Certificate” means a certificate signed on behalf of each of the Company and Finance Corp. by two of its Officers, one of whom,
in the case of any Officers’ Certificate delivered pursuant to Section 4.04, must be the principal executive officer, the principal
financial officer, or the principal accounting officer of the Company or Finance Corp., as the case may be, that, in each case, meets
the requirements of Section 11.05 hereof.
“Opinion of Counsel”
means a written opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 11.05
hereof. The counsel may be an employee of or counsel to the Company or any Subsidiary of the Company.
“Pari Passu Indebtedness”
means, with respect to any Excess Proceeds from Asset Sales, Indebtedness of an Issuer or any Guarantor that ranks equally in right
of payment with the Notes or the Subsidiary Guarantees, as the case may be, and the terms of which require the Company or any of its Restricted
Subsidiaries to apply such Excess Proceeds to offer to repurchase such Indebtedness.
“Partnership Agreement”
means the Fifth Amended and Restated Agreement of Limited Partnership of the Company dated as of March 24, 2021, as in effect on
the Initial Issuance Date and as such may be further amended, modified or supplemented from time to time.
“Permitted Business”
means either (1) the ownership or operation of assets related to the wholesale or retail marketing, sale, distribution or transportation
of refined petroleum products or other Hydrocarbons or alternative sources of energy, including, without limitation, retail gasoline stations
and convenience stores (whether or not associated with retail gasoline stations) and the storage of refined petroleum products or other
Hydrocarbons and bunkering, (2) any other business conducted by the Company and its Subsidiaries on the Initial Issuance Date, (3) any
other activities or services that are similar, ancillary or reasonably related to or a reasonable extension, expansion or development
of the foregoing, or (4) any other business that generates gross income that constitutes “qualifying income” under Section 7704(d) of
the Code.
“Permitted Business
Investments” means Investments by the Company or any of its Restricted Subsidiaries in any Unrestricted Subsidiary of the Company
or in any Joint Venture, provided that:
(1) either
(a) at the time of such Investment and immediately thereafter, the Company could incur $1.00 of additional Indebtedness under the
Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 or (b) such Investment does not exceed the
aggregate amount of Incremental Funds not previously expended at the time of making such Investment;
(2) if
such Unrestricted Subsidiary or Joint Venture has outstanding Indebtedness at the time of such Investment, either (a) all such Indebtedness
is Non-Recourse Debt or (b) any such Indebtedness of such Unrestricted Subsidiary or Joint Venture that is recourse to the Company
or any of its Restricted Subsidiaries (which shall include, without limitation, all Indebtedness of such Unrestricted Subsidiary or Joint
Venture for which the Company or any of its Restricted Subsidiaries may be directly or indirectly, contingently or otherwise, obligated
to pay, whether pursuant to the terms of such Indebtedness, by law or pursuant to any guarantee, including, without limitation, any “claw-back,”
“make-well” or “keep-well” arrangement) could, at the time such Investment is made, be incurred at that time by
the Company and its Restricted Subsidiaries under the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09;
and
(3) such
Unrestricted Subsidiary’s or Joint Venture’s activities are not outside the scope of the Permitted Business.
“Permitted Investments”
means:
(1) any
Investment in the Company (including, without limitation, through purchases of Notes) or in a Restricted Subsidiary of the Company;
(2) any
Investment in Cash Equivalents;
(3) any
Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:
(a) such
Person becomes a Restricted Subsidiary of the Company;
(b) such
Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its properties or assets to,
or is liquidated into, the Company or a Restricted Subsidiary of the Company; or
(c) any
Investment held by any such Person at the time it becomes a Restricted Subsidiary of the Company or is merged, consolidated or amalgamated
with or into the Company or a Restricted Subsidiary, in each case pursuant to a transaction that is permitted by this Indenture; provided
that such Investment was in existence prior to the contemplation of such transaction;
(4) any
Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with
Section 4.10 or any disposition not constituting an Asset Sale;
(5) any
Investment in any Person solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;
(6) any
Investments received in compromise of obligations of trade creditors or customers that were incurred in the ordinary course of business,
including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer,
or as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment in default;
(7) Hedging
Contracts;
(8) Permitted
Business Investments; and
(9) other
Investments in any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (9) that are
at the time outstanding, do not exceed the greater of $110.0 million or 6.0% of the Company’s Consolidated Net Tangible Assets;
provided, however, that if any Investment pursuant to this clause (9) is made in any Person that is not a Restricted Subsidiary of
the Company at the date of the making of such Investment and such Person becomes a Restricted Subsidiary of the Company after such date,
such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant
to this clause (9) for so long as such Person continues to be a Restricted Subsidiary of the Company.
“Permitted Liens”
means:
(1) Liens
securing Indebtedness under a Credit Facility permitted to be incurred under this Indenture pursuant to clause (1) of the definition
of Permitted Debt;
(2) Liens
in favor of the Company or any Restricted Subsidiary;
(3) Liens
on property of a Person existing at the time such Person is merged with or into or consolidated with the Company or any Restricted Subsidiary
of the Company, provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend
to any assets (other than improvements thereon, accessions thereto and proceeds thereof) other than those of the Person merged into or
consolidated with the Company or the Restricted Subsidiary;
(4) Liens
on property existing at the time of acquisition of the property by the Company or any Restricted Subsidiary of the Company, provided that
such Liens were in existence prior to the contemplation of such acquisition;
(5) any
interest or title of a lessor to the property subject to a Finance Lease Obligation or operating lease, including any sale and leaseback
transaction;
(6) Liens
for the purpose of securing the payment of all or a part of the purchase price of, or Finance Lease Obligations, purchase money obligations
or other payments incurred to finance the acquisition, lease, improvement or construction of or repairs or additions to, assets or property
acquired or constructed in the ordinary course of business; provided that:
(a) the
aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be incurred under this Indenture and does not
exceed the cost of the assets or property so acquired or constructed; and
(b) such
Liens are created within 180 days of the later of the acquisition, lease, completion of improvements, construction, repairs or additions
or commencement of full operation of the assets or property subject to such Lien and do not encumber any other assets or property of the
Company or any Restricted Subsidiary other than such assets or property and assets affixed or appurtenant thereto;
(7) Liens
existing on the Initial Issuance Date (other than Liens permitted by clause (1));
(8) Liens
to secure the performance of tenders, bids, statutory obligations, surety or appeal bonds, trade contracts, government contracts, operating
leases, performance bonds or other obligations of a like nature incurred in the ordinary course of business;
(9) Liens
on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Joint Venture owned by the Company or any Restricted Subsidiary
of the Company to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Joint Venture;
(10) Liens
on pipelines or other facilities or equipment that arise by operation of law;
(11) Liens
arising under operating agreements, joint venture agreements, partnership agreements, oil and gas leases, farmout agreements, division
orders, contracts for sale, transportation or exchange of crude oil and natural gas, unitization and pooling declarations and agreements,
area of mutual interest agreements and other agreements arising in the ordinary course of business of the Company and its Restricted Subsidiaries
that are customary in the Permitted Business;
(12) Liens
upon specific items of inventory, receivables or other goods or proceeds of the Company or any of its Restricted Subsidiaries securing
such Person’s obligations in respect of bankers’ acceptances or receivables securitizations issued or created for the account
of such Person to facilitate the purchase, shipment or storage of such inventory, receivables or other goods or proceeds and permitted
by Section 4.09;
(13) Liens
securing Obligations of the Issuers or any Guarantor under the Notes or the Subsidiary Guarantees, as the case may be;
(14) Liens
securing any Indebtedness equally and ratably with all Obligations due under the Notes or any Subsidiary Guarantee pursuant to a contractual
covenant that limits Liens in a manner substantially similar to Section 4.12;
(15) Liens
to secure performance of Hedging Contracts of the Company or any of its Restricted Subsidiaries;
(16) Liens
securing any insurance premium financing under customary terms and conditions, provided that no such Lien may extend to or cover any assets
or property other than the insurance being acquired with such financing, the proceeds thereof and any unearned or refunded insurance premiums
related thereto;
(17) other
Liens incurred by the Company or any Restricted Subsidiary of the Company, provided that, after giving effect to any such incurrence,
the aggregate principal amount of all Indebtedness then outstanding and secured by any Liens incurred pursuant to this clause (17)
does not exceed the greater of (a) $110.0 million or (b) 6.0% of the Company’s Consolidated Net Tangible Assets at such
time; and
(18) any
Lien renewing, extending, refinancing or refunding a Lien permitted by clauses (1) through (16) above, provided that (a) the
principal amount of the Indebtedness secured by such Lien is not increased except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection therewith and by an amount equal to any existing commitments
unutilized thereunder and (b) no assets encumbered by any such Lien other than the assets permitted to be encumbered immediately
prior to such renewal, extension, refinance or refund are encumbered thereby (other than improvements thereon, accessions thereto and
proceeds thereof).
“Permitted Refinancing
Indebtedness” means any Indebtedness or Disqualified Stock of the Company or any of its Restricted Subsidiaries or any preferred
stock of a Restricted Subsidiary of the Company issued in exchange for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund other Indebtedness or Disqualified Stock of the Company or any of its Restricted Subsidiaries or any preferred
stock of a Restricted Subsidiary of the Company (other than intercompany Indebtedness); provided that:
(1) the
principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount of
the Indebtedness, or the liquidation preference of the Disqualified Stock or preferred stock being extended, refinanced, renewed, replaced,
defeased or refunded (plus all accrued interest on the Indebtedness, or accrued and unpaid dividends or distributions on such Disqualified
Stock or preferred stock, and the amount of all fees, expenses and premiums incurred in connection therewith);
(2) such
Permitted Refinancing Indebtedness (a) has a final maturity date or redemption date, as applicable, no earlier than the earlier of
(i) the final maturity date or redemption date, as applicable, of the Indebtedness or Disqualified Stock or preferred stock being
refinanced, or (ii) 91 days after the final maturity of the Notes, and (b) has a Weighted Average Life to Maturity either (i) equal
to or greater than the Weighted Average Life to Maturity of the Indebtedness or Disqualified Stock or preferred stock being refinanced,
or (ii) longer than the Weighted Average Life to Maturity of the Notes;
(3) if
the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes
or the Subsidiary Guarantees, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes or the Subsidiary
Guarantees on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and
(4) such
Indebtedness is not incurred (other than by way of a guarantee) by a Restricted Subsidiary of the Company (other than Finance Corp.) if
the Company is the issuer or other primary obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.
Notwithstanding the preceding,
any Indebtedness incurred under Credit Facilities pursuant to Section 4.09 shall be subject only to the refinancing provision in
the definition of Credit Facilities and not pursuant to the requirements set forth in the definition of Permitted Refinancing Indebtedness.
“Person”
means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
“Prior Issue Date”
means June 24, 2014.
“QIB” means
a “qualified institutional buyer” as defined in Rule 144A under the Securities Act.
“Rating Category”
means:
(1) with
respect to S&P, any of the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories); and
(2) with
respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories).
“Rating Decline”
means a decrease in the rating of the Notes by either Moody’s or S&P by one or more gradations (including gradations within
Rating Categories as well as between Rating Categories). In determining whether the rating of the Notes has decreased by one or more gradations,
gradations within Rating Categories, namely + or - for S&P, and 1, 2, and 3 for Moody’s, will be taken into account; for example,
in the case of S&P, a rating decline either from BB+ to BB or BB- to B+ will constitute a decrease of one gradation.
“Regulation S”
has the meaning provided in the Appendix.
“Reporting Default”
means a Default described in Section 6.01(d).
“Repurchase Program”
means a repurchase program maintained by the General Partner from time to time for the purpose of funding compensation expenses for its
employees.
“Responsible Officer,”
when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee having direct responsibility
for the administration of this Indenture.
“Restricted Global
Note” has the meaning provided in the Appendix.
“Restricted Investment”
means an Investment other than a Permitted Investment.
“Restricted Subsidiary”
of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary. Notwithstanding anything in this Indenture
to the contrary, Finance Corp. shall be a Restricted Subsidiary of the Company.
“Rule 144A”
has the meaning provided in the Appendix.
“S&P”
refers to S&P Global Ratings, a division of S&P Global, Inc., or any successor to the rating agency business thereof.
“SEC” or
“Commission” means the Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended.
“Senior Debt”
means:
(1) all
Indebtedness of the Company or any of its Restricted Subsidiaries outstanding under the Credit Agreement and all obligations under Hedging
Contracts with respect thereto;
(2) any
other Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be incurred under the terms of this Indenture, unless
the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or
any Subsidiary Guarantee; and
(3) all
Obligations with respect to the items listed in the preceding clauses (1) and (2).
Notwithstanding anything to
the contrary in the preceding sentence, Senior Debt will not include:
| (a) | any intercompany Indebtedness of the Company or any of its Restricted Subsidiaries to the Company or any
of its Affiliates; or |
| (b) | any Indebtedness that is incurred in violation of this Indenture. |
For the avoidance of doubt, “Senior Debt”
will not include any trade payables or Taxes owed or owing by the Company or any of its Restricted Subsidiaries.
“Significant Subsidiary”
means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Initial Issuance Date.
“Slifka Group”
means (i) each of Richard Slifka, the late Alfred Slifka and Eric Slifka; (ii) the wife of any of the persons referred to
in clause (i) above; (iii) any lineal descendants of any of the persons referred to in clause (i) or (ii) above; (iv) any
guardian or other legal representative of the person or estate of any of the persons referred to in clause (i) or (ii) above;
(v) any trust of which at least one of the trustees is any of the persons referred to in clauses (i) through (iii) above,
or the principal beneficiaries of which are any one or more of the persons referred to in clauses (i) through (iv) above; (vi) any
Person which is controlled by any one or more of the Persons in clauses (i) through (v) above; and (vii) any group (within
the meaning of the Exchange Act and the rules of the Commission thereunder) that includes one or more of the Persons described in
clauses (i) through (vi) above, provided that such Persons described in clauses (i) through (vi) above control more
than 50% of the voting power of such group.
“Stated Maturity”
means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest
or principal was scheduled to be paid in the original documentation governing such Indebtedness, and will not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“Subsidiary”
means, with respect to any specified Person:
(1) any
corporation, association or other business entity (other than a partnership or limited liability company) of which more than 50% of the
total voting power of Voting Stock is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(2) any
partnership (whether general or limited) or limited liability company (a) the sole general partner or member of which is such Person
or a Subsidiary of such Person, or (b) if there is more than a single general partner or member, either (x) the only managing
general partners or managing members of which are such Person or one or more Subsidiaries of such Person (or any combination thereof)
or (y) such Person owns or controls, directly or indirectly, a majority of the outstanding general partner interests, member interests
or other Voting Stock of such partnership or limited liability company, respectively.
“Subsidiary Guarantee”
means any guarantee by a Guarantor of the Issuers’ Obligations under this Indenture and on the Notes.
“Tax” means
all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other
charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Transfer Restricted
Securities” has the meaning provided in the Appendix.
“Treasury Rate”
means the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 which has become publicly available at least two Business Days
prior to such time (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the redemption date to January 15, 2027; provided, however, that if such period is not equal to the
constant maturity of a United States Treasury security for which a weekly average yield is given, the Company shall obtain the Treasury
Rate by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury
securities for which such yields are given, except that if the period from the redemption date to January 15, 2027 is less than one
year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall
be used. The Company will (a) calculate the Treasury Rate no earlier than the fourth Business Day and no later than on the second
Business Day preceding the applicable redemption date (or, in the case of any redemption in connection with a defeasance of the Notes
or a satisfaction and discharge of this Indenture, on the Business Day preceding such event) and (b) prior to such redemption date
file with the Trustee a written statement setting forth the Make Whole Premium and the Treasury Rate. The Trustee shall have no duty to
calculate or verify the Treasury Rate.
“Trustee”
means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
“Uniform Commercial
Code” means the New York Uniform Commercial Code as in effect from time to time.
“Unrestricted Subsidiary”
means any Subsidiary of the Company (other than Finance Corp.) that is designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such Subsidiary, at the time of designation:
(1) except
to the extent permitted by clause (2)(b) of the definition of “Permitted Business Investments,” has no Indebtedness other
than Non-Recourse Debt owing to any Person other than the Company or any of its Restricted Subsidiaries;
(2) except
to the extent permitted by Section 4.11, after giving effect to making such Subsidiary an Unrestricted Subsidiary, is not party to
any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the Company; and
(3) is
a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results, except in each case as would be permitted as a Restricted Investment or a
Permitted Investment under this Indenture after giving effect to making such Subsidiary an Unrestricted Subsidiary.
All Subsidiaries of an Unrestricted
Subsidiary shall also be Unrestricted Subsidiaries.
Any designation of a Subsidiary
of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee an Officers’ Certificate
certifying that such designation complied with the preceding conditions and was permitted by Section 4.07.
“Voting Stock”
of any Person as of any date means the Capital Stock of such Person that is at the time entitled (without regard to the occurrence of
any contingency) to vote in the election of the Board of Directors of such Person.
“Weighted Average
Life to Maturity” means, when applied to any Indebtedness, Disqualified Stock or preferred stock, as the case may be, at any
date, the number of years obtained by dividing:
(1) the
sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect of the Indebtedness, or similar payments with respect
to the Disqualified Stock or preferred stock, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; by
(2) the
sum of all such payments.
Section 1.02. Other
Definitions.
Term |
Defined in Section |
“Alternate Offer”
“Authentication Order” |
4.15
2.02 |
“Act” |
11.14 |
“Affiliate Transaction” |
4.11 |
“Appendix” |
2.01 |
“Asset Sale Offer” |
3.09 |
“Calculation Date” |
1.01 |
“Change of Control Offer” |
4.15 |
“Change of Control Payment” |
4.15 |
“Change of Control Settlement Date” |
4.15 |
“Covenant Defeasance” |
8.03 |
“Discharge” |
8.08 |
“Event of Default” |
6.01 |
“Excess Proceeds” |
4.10 |
“Incremental Funds” |
4.07 |
“incur” |
4.09 |
“Legal Defeasance” |
8.02 |
“Offer Amount” |
3.09 |
“Offer Period” |
3.09 |
“Paying Agent” |
2.03 |
“Payment Default” |
6.01 |
“Permitted Debt” |
4.09 |
“Registrar” |
2.03 |
“Restricted Payments” |
4.07 |
“Reinstatement Date” |
4.17 |
“Settlement Date” |
3.09 |
“Suspended Covenants” |
4.17 |
“Termination Date” |
3.09 |
“Trailing Four Quarters” |
4.07 |
Section 1.03. [Reserved].
Section 1.04. Rules of
Construction.
Unless the context otherwise
requires:
(1) a
term has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) “or”
is not exclusive;
(4) words
in the singular include the plural, and in the plural include the singular;
(5) the
meanings of the words “will” and “shall” are the same when used to express an obligation;
(6) references
to sections of or rules under the Securities Act or the Exchange Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time; and
(7) “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole (as amended or supplemented from time to time)
and not to any particular Article, Section or other subdivision
ARTICLE 2
THE NOTES
Section 2.01. Form and
Dating.
Provisions relating to the
Notes are set forth in the Rule 144A/Regulation S Appendix attached hereto (the “Appendix”) which is hereby incorporated
in and expressly made part of this Indenture. The Notes and the Trustee’s certificate of authentication therefor shall be substantially
in the form of Exhibit 1 to the Appendix which is hereby incorporated in and expressly made a part of this Indenture. The Notes may
have notations, legends or endorsements required by law, stock exchange rule, agreements to which an Issuer is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable to the Company). Each Note shall be dated the date of
its authentication. The terms of the Notes set forth in the Appendix are part of the terms of this Indenture.
Section 2.02. Execution
and Authentication.
An Officer shall sign the
Notes on behalf of each Issuer by manual or facsimile signature.
If an Officer whose signature
is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid
until an authorized signatory of the Trustee manually signs the certificate of authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
Upon receipt of a written
order signed by an Officer of each Issuer (an “Authentication Order”), the Trustee shall authenticate and deliver $450.0 million
of 8.250% Senior Notes due 2032 on the Initial Issuance Date, and, at any time and from time to time thereafter, the Trustee shall authenticate
and deliver Notes for original issue in an aggregate principal amount specified in such Authentication Order. Such order shall specify
the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated and to whom the Notes
shall be registered and delivered and, in the case of an issuance of Additional Notes pursuant to Section 2.13 after the Initial
Issuance Date, shall certify that such issuance is in compliance with Section 4.09.
The Trustee may appoint an
authenticating agent reasonably acceptable to the Issuers to authenticate the Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent for
service of notices and demands.
Section 2.03. Registrar
and Paying Agent.
The Issuers shall maintain
an office or agency in the United States where Notes may be presented for registration of transfer or for exchange (the “Registrar”)
and an office or agency in the United States where Notes may be presented for payment (the “Paying Agent”). The Registrar
shall keep a register of the Notes and of their transfer and exchange. The Issuers may have one or more co-registrars and one or more
additional paying agents. The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes
any additional paying agent.
The Issuers shall enter into
an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Issuers shall notify the Trustee of the name and address of any such agent. If the Issuers
fail to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.07. The Company or any Subsidiary may act as Paying Agent or Registrar.
The Issuers initially appoint
the Trustee as Registrar and Paying Agent in connection with the Notes at the Corporate Trust Office of the Trustee. If the Trustee is
no longer the Registrar and Paying Agent, the Issuers shall provide the Trustee with access to inspect the Note register at all times
and with copies of the Note register.
Section 2.04. Paying
Agent to Hold Money in Trust.
Prior to 10:00 a.m. New
York City time, on each due date of the principal and interest on any Note, an Issuer shall deposit with the Paying Agent a sum sufficient
to pay such principal and interest when so becoming due. The Issuers shall require each Paying Agent (other than the Trustee) to agree
in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Notes and shall notify the Trustee of any default by the Issuers in making any such payment.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund. The Issuers at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying Agent shall have no further liability for the money delivered
to the Trustee.
Section 2.05. Holder
Lists.
The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee
is not the Registrar, the Issuers shall furnish to the Trustee, in writing at least five Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Holders and the principal amounts and number of Notes.
Section 2.06. Transfer
and Exchange.
The Notes shall be issued
in registered form and shall be transferable only upon the surrender of a Note for registration of transfer. When a Note is presented
to the Registrar or a co-registrar with a request to register a transfer, the Registrar shall register the transfer as requested if the
requirements of this Indenture and Section 8-401(a) of the Uniform Commercial Code are met. When Notes are presented to the
Registrar with a request to exchange them for an equal principal amount of Notes of other denominations, the Registrar shall make the
exchange as requested if the same requirements are met. The Issuers may require payment of a sum sufficient to cover any Taxes, assessments
or other governmental charges in connection with any transfer or exchange pursuant to this Section (other than any such transfer
taxes, assessments or similar governmental charge payable upon exchange or transfer pursuant to Section 3.06, 4.10, 4.15 or 9.05).
Section 2.07. Replacement
Notes.
If a mutilated Note is surrendered
to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuers shall issue
and, upon receipt of an Authentication Order, the Trustee shall authenticate a replacement Note if the requirements of Section 8-405
of the Uniform Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee. If required by the Trustee
or the Issuers, such Holder shall furnish an indemnity bond sufficient in the judgment of the Issuers and the Trustee to protect the Issuers,
the Trustee, the Paying Agent and the Registrar from any loss which any of them may suffer if a Note is replaced. The Issuers and the
Trustee may charge the Holder for their expenses in replacing a Note. In the event any such Note shall have matured, instead of issuing
a new Note, the Issuers may direct the Trustee to pay the same without surrender thereof upon the Holder furnishing the Issuers and the
Trustee with indemnity or security satisfactory to them and complying with such other reasonable regulations as the Issuers may prescribe
and paying such reasonable expenses as the Issuer and the Trustee may incur in connection therewith.
Every replacement Note is
an additional obligation of the Issuers.
Section 2.08. Outstanding
Notes.
Notes outstanding at any time
are all Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described
in this Section as not outstanding. Except as otherwise provided in Section 11.16, a Note does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant
to Section 2.07, it ceases to be outstanding unless the Trustee, any provider of an indemnity bond and the Issuers receive proof
satisfactory to them that the replaced Note is held by a protected purchaser.
If the Paying Agent segregates
and holds in trust, in accordance with this Indenture, by 10:00 a.m. New York time, on a redemption date or maturity date money sufficient
to pay all principal, premium, if any, and interest payable on that date with respect to the Notes (or portions thereof) to be redeemed
or maturing, as the case may be, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on
them cease to accrue.
Section 2.09. Temporary
Notes.
Until definitive Notes are
ready for delivery, the Issuers may prepare and, upon receipt of an Authentication Order, the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Issuers consider appropriate for
temporary Notes. Without unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate definitive Notes and deliver
them in exchange for temporary Notes.
Section 2.10. Cancellation.
An Issuer at any time may
deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to
them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel (subject to the record retention requirements
of the Exchange Act) all Notes surrendered for registration of transfer, exchange, payment or cancellation. Upon written request, the
Trustee will deliver a certificate of such cancellation to the Issuers unless the Issuers direct the Trustee to deliver canceled Notes
to the Issuers instead. The Issuers may not issue new Notes to replace Notes they have redeemed, paid or delivered to the Trustee for
cancellation.
Section 2.11. Defaulted
Interest.
If the Issuers default in
a payment of interest on the Notes, the Issuers shall pay defaulted interest (plus interest on such defaulted interest to the extent lawful)
in any lawful manner. The Issuers may pay the defaulted interest to the Persons who are Holders on a subsequent special record date, provided
that no special record date shall be required with respect to interest paid within the applicable grace period. The Issuers shall fix
or cause to be fixed any such special record date and payment date to the reasonable satisfaction of the Trustee and shall promptly send
to each Holder a notice that states the special record date, the payment date and the amount of defaulted interest to be paid.
Section 2.12. CUSIP
Numbers.
The Issuers in issuing the
Notes may use “CUSIP” numbers and corresponding “ISINs” (if then generally in use) and, if so, the Trustee shall
use “CUSIP” numbers and corresponding “ISINs” in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the
Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuers will notify the Trustee
promptly of any change in any “CUSIP” or “ISIN” number.
Section 2.13. Issuance
of Additional Notes.
The Issuers shall be entitled,
subject to their compliance with Section 4.09, to issue Additional Notes under this Indenture which shall have identical terms as
the Initial Notes issued on the Initial Issuance Date, other than with respect to the date of issuance, the issue price and the date from
which interest begins to accrue. The Initial Notes issued on the Initial Issuance Date and any Additional Notes shall be treated as a
single class for all purposes under this Indenture, including, without limitation, waivers, consents, directions, declarations, amendments,
redemptions and offers to purchase.
With respect to any Additional
Notes, the Issuers shall set forth in an Officers’ Certificate, which shall be delivered to the Trustee, the following information:
(1) the
aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;
(2) the
issue price, the issue date and the CUSIP number and any corresponding ISIN of such Additional Notes; and
(3) whether
such Additional Notes shall be Transfer Restricted Securities as set forth in Exhibit 1 to the Appendix to this Indenture.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices
to Trustee.
If the Issuers elect to redeem
Notes pursuant to the optional redemption provisions of Section 3.07 hereof, they shall furnish to the Trustee, at least two Business
Days (unless a shorter period shall be agreeable to the Trustee) before the date of giving notice of the redemption pursuant to Section 3.03,
an Officers’ Certificate setting forth (i) the clause of Section 3.07 pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed, (iv) the redemption price or its method of determination,
and (v) whether it requests the Trustee to give notice of such redemption. Any such notice may be cancelled at any time prior to
the sending of notice of such redemption to any Holder and shall thereby be void and of no effect.
Section 3.02. Selection
of Notes to be Redeemed.
If
less than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes to be redeemed among the Holders of the
Notes as follows: (1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal
national securities exchange on which the Notes are listed; or (2) if the Notes are not listed on any national securities exchange,
on a pro rata basis (except that any Notes represented by a Global Note will be redeemed by such method as the Depository may require).
The Trustee shall promptly
notify the Issuers in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal
amount thereof to be redeemed. Notes and portions of Notes selected shall be in amounts of $2,000 or integral multiples of $1,000 in excess
of $2,000; except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder,
even if not $2,000 or a multiple of $1,000, shall be redeemed. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
The provisions of the immediately
preceding paragraph of this Section 3.02 shall not apply with respect to any redemption affecting only a Global Note, whether such
Global Note is to be redeemed in whole or in part. In case of any such redemption in part, the unredeemed portion of the principal amount
of the Global Note shall be in an authorized denomination.
Section 3.03. Notice
of Redemption.
At least 10 days but not more
than 60 days before a redemption date, the Issuers shall prepare and send, or cause to be sent, a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address (with a copy to the Trustee), except that redemption notices may be sent more
than 60 days prior to a redemption date if the notice is issued in connection with a Legal Defeasance, Covenant Defeasance or Discharge.
The notice shall identify
the Notes to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price or, if the redemption price is not then determinable, the manner in which it is to be determined;
(c) if
any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in a principal amount equal to the unredeemed portion shall be issued in the name of
the Holder upon cancellation of the original Note;
(d) the
name and address of the Paying Agent;
(e) that
Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that,
unless the Issuers default in making such redemption payment, subject to the satisfaction of any conditions precedent to such redemption
set forth in such redemption notice, interest on Notes called for redemption cease to accrue on and after the redemption date and the
only remaining right of the Holders of such Notes is to receive payment of the redemption price upon surrender to the Paying Agent of
the Notes redeemed;
(g) the
paragraph of the Notes or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;
(h) any
conditions precedent to such redemption; and
(i) that
no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the
Notes.
If any of the Notes to be
redeemed is in the form of a Global Note, then the Issuers shall modify such notice to the extent necessary to accord with the procedures
of the Depository applicable to redemption.
At the Issuers’ request,
the Trustee shall give the notice of optional redemption in the Issuers’ names and at their expense; provided, however, that the
Issuers shall have delivered to the Trustee, as provided in Section 3.01, an Officers’ Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice as provided in the second preceding paragraph.
Section 3.04. Effect
of Notice of Redemption.
Once notice of redemption
is sent in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable (subject to the immediately
succeeding sentence) on the redemption date at the redemption price. A redemption may, at the Company’s discretion, be subject to
one or more conditions precedent, including any related Equity Offering. If such redemption is subject to the satisfaction of one or more
conditions precedent, the related notice shall describe each such condition, and if applicable, shall state that, in the Company’s
discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied or waived (provided
that in no event shall such redemption date be delayed to a date later than 60 days after the date on which such notice was sent), or
such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied
or waived by redemption date, or by the redemption date as so delayed. If sent in the manner provided for in Section 3.03, the notice
of redemption shall be conclusively presumed to have been given whether or not a Holder receives such notice. Failure to give timely notice
or any defect in the notice shall not affect the validity of the redemption.
Section 3.05. Deposit
of Redemption Price.
Prior to 10:00 a.m., New York
City time, on the redemption date, the Issuers shall deposit with the Paying Agent (or, if the Company or a Subsidiary thereof is acting
as its own Paying Agent, segregate and hold in trust as provided in Section 2.04 hereof) money sufficient in same day funds to pay
the redemption price of and accrued interest on all Notes to be redeemed on that date. The Paying Agent shall promptly return to the Issuers
any money deposited with the Paying Agent by an Issuer in excess of the amounts necessary to pay the redemption price of and accrued interest
on all Notes to be redeemed.
If the Issuers comply with
the provisions of the preceding paragraph, on and after the redemption date, interest shall cease to accrue on the Notes or the portions
of Notes called for redemption whether or not such Notes are presented for payment, and the only remaining right of the Holders of such
Notes shall be to receive payment of the redemption price upon surrender to the Paying Agent of the Notes redeemed. If any Note called
for redemption shall not be so paid upon surrender for redemption because of the failure of an Issuer to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful, on any
interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06. Notes
Redeemed in Part.
Upon surrender of a Note that
is redeemed in part, the Issuers shall issue in the name of the Holder and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Issuers a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. Optional
Redemption.
(a) Except
as set forth in clauses (b), (c) and (d) of this Section 3.07, the Issuers shall not have the option to redeem the Notes
pursuant to this Section 3.07 prior to January 15, 2027. On or after January 15, 2027, the Issuers may on one or more occasions
redeem all or part of the Notes at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued
and unpaid interest, if any, on the Notes to be redeemed to the applicable redemption date (subject to the right of Holders on the relevant
record date to receive interest due on an interest payment date that is on or prior to the redemption date), if redeemed during the twelve-month
period beginning on January 15 of the years indicated below:
YEAR | | |
PERCENTAGE | |
2027 | | |
| 104.125 | % |
2028 | | |
| 102.063 | % |
2029 and thereafter | | |
| 100.000 | % |
(b) Notwithstanding
the provisions of clause (a) of this Section 3.07, at any time prior to January 15, 2027, the Issuers may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes (including any Additional Notes) issued under this Indenture
at a redemption price of 108.250% of the principal amount, plus accrued and unpaid interest, if any, to the redemption date (subject to
the right of Holders on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption
date), in an amount not greater than the net cash proceeds of one or more Equity Offerings, provided that:
(1) at
least 65% of the aggregate principal amount of Notes (including any Additional Notes) issued under this Indenture remains outstanding
immediately after the occurrence of such redemption (excluding any Notes held by the Company and its Subsidiaries); and
(2) the
redemption occurs within 180 days of the date of the closing of each such Equity Offering.
(c) Prior
to January 15, 2027, the Issuers may on any one or more occasions redeem all or part of the Notes at a redemption price equal to
the sum of:
(1) the
principal amount thereof, plus
(2) the
Make Whole Premium,
plus accrued and unpaid interest, if any, to the
redemption date (subject to the right of Holders on the relevant record date to receive interest due on an interest payment date that
is on or prior to the redemption date).
(d) The
Notes may also be redeemed, as a whole, following certain Change of Control Offer or Alternate Offers, at the redemption price and subject
to the conditions set forth in Section 4.15(6).
(e) Any
redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Section 3.01 through Section 3.06
hereof.
Section 3.08. Mandatory
Redemption; Open Market Purchases.
Except as set forth under
Sections 4.10 and 4.15 hereof, neither of the Issuers is required to make mandatory redemption or sinking fund payments with respect to
the Notes or to repurchase the Notes at the option of the Holders.
The Company may acquire Notes
by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance
with applicable securities laws, so long as such acquisition does not otherwise violate the terms of this Indenture.
Section 3.09. Offer
to Purchase by Application of Excess Proceeds.
In the event that, pursuant
to Section 4.10 hereof, the Company shall be required to commence an offer to all Holders to purchase Notes (an “Asset Sale
Offer”), it shall follow the procedures specified below.
The Asset Sale Offer shall
remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required
by Applicable Law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Settlement
Date”), the Company shall purchase and pay for the principal amount of Notes required to be purchased pursuant to Section 4.10
hereof (the “Offer Amount”) or, if less than the Offer Amount has been validly tendered (and not validly withdrawn), all Notes
validly tendered (and not validly withdrawn) in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in
the manner prescribed in the Notes.
Upon the commencement of an
Asset Sale Offer, the Company shall send a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to
all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that
the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale
Offer shall remain open, including the time and date the Asset Sale Offer will terminate (the “Termination Date”);
(b) the
Offer Amount and the purchase price;
(c) that
any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that,
unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest after the Settlement Date;
(e) that
Holders electing to have a Note purchased pursuant to an Asset Sale Offer may only elect to have all of such Note purchased and may not
elect to have only a portion of such Note purchased;
(f) that
Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled
“Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Company or a Paying Agent at the address
specified in the notice, before the Termination Date;
(g) that
Holders shall be entitled to withdraw their election if the Company or the Paying Agent, as the case may be, receives, prior to the Termination
Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for
purchase, and a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that,
if the aggregate principal amount of Notes surrendered by Holders, and Pari Passu Indebtedness surrendered by holders or lenders, collectively,
exceeds the amount the Company is required to repurchase, the Trustee shall select the Notes and Pari Passu Indebtedness to be purchased
on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness (with such adjustments
as may be deemed appropriate by the Trustee so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess of
$2,000, shall be purchased); and
(i) that
Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
If any of the Notes subject
to an Asset Sale Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with
the procedures of the Depository applicable to repurchases.
Promptly after the Termination
Date, the Company shall, to the extent lawful, accept for payment Notes or portions thereof tendered pursuant to the Asset Sale Offer
in the aggregate principal amount required by Section 4.10 hereof, and prior to the Settlement Date it shall deliver to the Trustee
an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with
the terms of this Section 3.09 and Section 4.10. Prior to 10:00 a.m., New York City time, on the Settlement Date, the Company
or the Paying Agent, as the case may be, shall deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered
by such Holder and accepted by the Company for purchase, and the Company shall issue a new Note, and, upon receipt of an Authentication
Order, the Trustee shall authenticate and deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion
of the Note surrendered. Any Note not so accepted shall be promptly delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Asset Sale Offer on or before the Settlement Date.
ARTICLE 4
COVENANTS
Section 4.01. Payment
of Notes.
The Issuers shall pay or cause
to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal,
premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 10:00 a.m., New York City time, on the due date money deposited by an Issuer or a Guarantor in immediately available
funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
The Issuers shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, at the rate equal
to the interest rate on the Notes to the extent lawful; and they shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period), at the same rate to the
extent lawful.
Section 4.02. Maintenance
of Office or Agency.
The Issuers shall maintain
an office or agency (which may be an office of the Trustee or an affiliate of the Trustee) in the United States where Notes may be presented
or surrendered for payment and they shall maintain an office or agency in the United States (which may be an office of the Trustee or
an affiliate of the Trustee) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands
to or upon the Issuers in respect of the Notes and this Indenture may be served. The Issuers shall give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency. If at any time the Issuers shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Issuers may also from
time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations. The Issuers shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or agency.
The Issuers hereby designate
the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03.
Section 4.03. Reports.
(a) Whether
or not required by the Commission, so long as any Notes are outstanding, the Company will furnish (whether through hard copy or internet
access) to the Trustee and, upon its prior request, to any of the Holders or Beneficial Owners of Notes, within the time periods specified
in the Commission’s rules and regulations:
(1) all
quarterly and annual financial and other information with respect to the Company and its Subsidiaries that would be required to be contained
in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report
on the annual financial statements by the Company’s certified independent accountants; and
(2) all
current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports.
(b) The
Company will be deemed to have furnished each report required by paragraph (a) of this Section 4.03 to the Trustee and the Holders
and Beneficial Owners of the Notes if it has filed such report with the Commission using the EDGAR filing system (or any successor system)
and such report is publicly available. The Trustee shall have no responsibility to determine whether such filings have been made.
(c) If
the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then, to the extent material, the quarterly and annual
financial information required by paragraph (a) of this Section 4.03 shall include a reasonably detailed presentation, either
on the face of the financial statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition
and Results of Operations, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate
from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.
(d) Any
and all Defaults or Events of Default arising from a failure to furnish or file in a timely manner any information or report required
by this Section 4.03 shall be deemed cured (and the Company shall be deemed to be in compliance with this Section 4.03) upon
furnishing or filing such information or report as contemplated by this Section 4.03 (but without regard to the date on which such
information or report is so furnished or filed); provided that such cure shall not otherwise affect the rights of the Holders under Article 6
if principal, premium, if any, and interest have been accelerated in accordance with the terms of this Indenture and such acceleration
has not been rescinded or cancelled prior to such cure.
(e) The
Trustee shall have no duty to review or analyze reports delivered to it. Delivery of reports, information and documents to the Trustee
under this Section is for informational purposes only, and the Trustee’s receipt thereof shall not constitute actual or constructive
notice or knowledge of any information contained therein or determinable from the information contained therein, including the Company’s
compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to certificates as set forth in this Indenture).
The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the
covenants or with respect to any reports or other documents filed with the SEC or EDGAR or any website under this Indenture, or participate
in any conference calls.
(f) In
addition, the Company and the Guarantors shall, for so long as any Notes remain outstanding, furnish to the Holders and Beneficial Owners
of the Notes and to securities analysts and prospective investors in the Notes, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04. Compliance
Certificate.
(a) The
Issuers shall deliver to the Trustee, within 90 days after the end of each fiscal year ending after December 31, 2024, an Officers’
Certificate stating that a review of the activities of the Company and its Restricted Subsidiaries during the preceding fiscal year has
been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best
of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default
or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto).
(b) The
Issuers shall, so long as any of the Notes are outstanding, deliver to the Trustee, forthwith upon any Officer of the General Partner
or Finance Corp. becoming aware of any Default or Event of Default, a statement specifying such Default or Event of Default.
Section 4.05. Taxes.
The Company shall pay, and
shall cause each of its Subsidiaries to pay, prior to delinquency, all material Taxes, assessments, and governmental levies except such
as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
Section 4.06. Stay,
Extension and Usury Laws.
Each of the Issuers and the
Guarantors covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that
may affect the covenants or the performance of this Indenture; and Issuers and the Guarantors (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power
as though no such law has been enacted.
Section 4.07. Limitation
on Restricted Payments.
The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare
or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’
Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any
of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’
Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company or payable to the Company or a Restricted Subsidiary of the Company);
(2) purchase,
redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving
the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;
(3) make
any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated
to the Notes or the Subsidiary Guarantees (excluding any intercompany Indebtedness between or among the Company and any of its Restricted
Subsidiaries), except a payment of interest or principal at the Stated Maturity thereof or within six months of the final Stated Maturity
thereof; or
(4) make
any Restricted Investment (all such payments and other actions set forth in these clauses (1) through (4) above being collectively
referred to as “Restricted Payments”),
unless, at the time of and after giving effect
to such Restricted Payment, no Default (except a Reporting Default) or Event of Default has occurred and is continuing or would occur
as a consequence of such Restricted Payment and either:
(1) if
the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements
are available at the time of such Restricted Payment (the “Trailing Four Quarters”) is not less than 1.75 to 1.0, such Restricted
Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries (excluding
Restricted Payments permitted by clauses (2), (3), (4), (5), (6) and (7) of the next succeeding paragraph) with respect to the
quarter for which such Restricted Payment is made, is less than the sum, without duplication, of:
(a) Available
Cash from Distributable Cash Flow as of the end of the immediately preceding fiscal quarter, plus
(b) 100%
of the aggregate net cash proceeds received by the Company, or the fair market value of any Permitted Business or long-term assets that
are used or useful in a Permitted Business to the extent acquired in consideration of Equity Interests of the Company (other than Disqualified
Stock), after the Prior Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the
Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests
(or Disqualified Stock or debt securities) sold to a Restricted Subsidiary of the Company), plus
(c) to
the extent that any Restricted Investment that was made after the Prior Issue Date is sold for cash or otherwise liquidated or repaid
for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any), plus
(d) the
net reduction in Restricted Investments resulting from dividends, repayments of loans or advances, or other transfers of assets in each
case to the Company or any of its Restricted Subsidiaries from any Person (including, without limitation, Unrestricted Subsidiaries) or
from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries to the extent such amounts have not been included in Available
Cash from Distributable Cash Flow for any period commencing on or after the Prior Issue Date (items (b), (c) and (d) being referred
to as “Incremental Funds”), minus
(e) the
aggregate amount of Incremental Funds previously expended pursuant to this clause (1) and clause (2) below; or
(2) if
the Fixed Charge Coverage Ratio for the Trailing Four Quarters is less than 1.75 to 1.0, such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries (excluding Restricted Payments permitted by
clauses (2), (3), (4), (5), (6) and (7) of the next succeeding paragraph) with respect to the quarter for which such Restricted
Payment is made (such Restricted Payments for purposes of this clause (2) meaning only distributions on the Company’s common
units, preferred units, subordinated units, or incentive distribution rights, plus the related distribution to the General Partner), is
less than the sum, without duplication, of:
(a) $120.0
million less the aggregate amount of all prior Restricted Payments made by the Company and its Restricted Subsidiaries pursuant to this
clause (2)(a) since the Prior Issue Date, plus
(b) Incremental
Funds to the extent not previously expended pursuant to this clause (2) or clause (1) above.
The preceding provisions will
not prohibit:
(1) the
payment of any dividend or distribution within 60 days after the date of its declaration, if at the date of declaration the payment would
have complied with the provisions of this Indenture;
(2) the
purchase, redemption, defeasance or other acquisition or retirement of any subordinated Indebtedness of the Company or any Guarantor or
of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent (a) contribution
(other than from a Restricted Subsidiary of the Company) to the equity capital of the Company or (b) sale (other than to a Restricted
Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock), with a sale being deemed substantially
concurrent if such purchase, redemption, defeasance or other acquisition or retirement occurs not more than 120 days after such sale;
provided, however, that the amount of any such net cash proceeds that are utilized for any such purchase, redemption, defeasance or other
acquisition or retirement will be excluded (or deducted, if included) from the calculation of Available Cash from Distributable Cash Flow
and Incremental Funds;
(3) the
purchase, redemption, defeasance or other acquisition or retirement of subordinated Indebtedness of the Company or any Guarantor with
the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(4) the
payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata
basis or a basis more favorable to the Company;
(5) so
long as no Default (except a Reporting Default) or Event of Default has occurred and is continuing or would be caused thereby, the purchase,
redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company
pursuant to any director or employee equity subscription agreement or equity option agreement or other employee benefit plan or to satisfy
obligations under any Equity Interests appreciation rights or option plan or similar arrangement, including the Repurchase Program of
Global GP LLC; provided, however, that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests
may not exceed $10.0 million in any calendar year, with any portion of such $10.0 million amount that is unused in any calendar year
to be carried forward to successive calendar years and added to such amount;
(6) the
purchase, redemption or other acquisition or retirement for value of Equity Interests deemed to occur upon the exercise of unit options,
warrants, incentives, rights to acquire Equity Interests or other convertible securities if such Equity Interests represent a portion
of the exercise or exchange price thereof, and any purchase, repurchase, redemption or other acquisition or retirement for value of Equity
Interests made in lieu of withholding Taxes in connection with any exercise or exchange of unit options, warrants, incentives or rights
to acquire Equity Interests; or
(7) any
purchase, redemption, defeasance or other acquisition or retirement for value of any subordinated Indebtedness (i) at a purchase
price not greater than 101% of the principal amount of such subordinated Indebtedness plus accrued interest in accordance with provisions
similar to Section 4.15 or (ii) at a purchase price not greater than 100% of the principal amount thereof plus accrued interest
in accordance with provisions similar to Section 4.10; provided that, prior to or simultaneously with such purchase, redemption,
defeasance or other acquisition or retirement for value, the Company shall have complied with Section 4.15 or Section 4.10 of
this Indenture, as the case may be, and repurchased all Notes validly tendered and accepted for payment in connection with the Change
of Control Offer or Asset Sale Offer, as the case may be.
The amount of all Restricted
Payments (other than cash) will be the fair market value on the date of the Restricted Payment proposed to be made of the securities or
other assets proposed to be issued or transferred by the Company or any of its Restricted Subsidiaries, as the case may be, pursuant to
the Restricted Payment, except that the fair market value of any non-cash dividend made within 60 days after the date of declaration shall
be determined as of such date of declaration. The fair market value of any Restricted Investment, securities or other assets that are
required to be valued by this Section 4.07 will be determined in the manner prescribed by the definition of such term.
Section 4.08. Limitation
on Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay
dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness
or other obligations owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of preferred
securities of a Restricted Subsidiary has in receiving dividends, distributions or liquidating distributions before dividends, distributions
or liquidating distributions are paid in respect of common equity of such Restricted Subsidiary shall not constitute a restriction on
the ability to make dividends or distributions on Capital Stock for purposes of this covenant;
(2) make
loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances
made to the Company or any other Restricted Subsidiary to other Indebtedness incurred by the Company or any other Restricted Subsidiary
will not be deemed a restriction on the ability to make loans or advances); or
(3) transfer
any of its properties or assets to the Company or any of its Restricted Subsidiaries.
However, the preceding restrictions
of this Section 4.08 will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements
as in effect on the Initial Issuance Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of those agreements or the Indebtedness to which they relate, provided that the amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, with
respect to such dividend, distribution and other payment restrictions than those contained in those agreements on the Initial Issuance
Date;
(2) this
Indenture, the Notes and the Subsidiary Guarantees;
(3) Applicable
Law;
(4) any
instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect
at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Indebtedness, such Indebtedness was
otherwise permitted by the terms of this Indenture to be incurred;
(5) customary
non-assignment provisions in Hydrocarbon purchase and sale or exchange agreements or similar operational agreements or in licenses, easements
or leases, in each case entered into in the ordinary course of business and consistent with past practices;
(6) Finance
Lease Obligations, mortgage financings or purchase money obligations, in each case for property acquired in the ordinary course of business
that impose restrictions on that property of the nature described in clause (3) of the preceding paragraph;
(7) any
agreement for the sale or other disposition of a Restricted Subsidiary of the Company that restricts distributions by that Restricted
Subsidiary pending its sale or other disposition;
(8) Permitted
Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness
are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) Liens
securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor
to dispose of the assets subject to such Liens;
(10) provisions
with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements
and other similar agreements entered into in the ordinary course of business;
(11) any
agreement or instrument relating to any property or assets acquired after the Initial Issuance Date, so long as such encumbrance or restriction
relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(12) restrictions
on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(13) the
issuance of preferred securities by a Restricted Subsidiary of the Company or the payment of dividends thereon in accordance with the
terms thereof; provided that issuance of such preferred securities is permitted pursuant to Section 4.09 and the terms of such preferred
securities do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make any other distributions on its
Capital Stock (other than requirements to pay dividends or liquidation preferences on such preferred securities prior to paying any dividends
or making any other distributions on such other Capital Stock);
(14) with
respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant
to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a payment default
or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Company determines that any such
encumbrance or restriction will not materially affect the Company’s ability to timely make principal or interest payments on the
Notes, as determined in good faith by the Company, whose determination shall be conclusive; and
(15) any
other agreement governing Indebtedness or Disqualified Stock of the Company or any Guarantor that is permitted to be incurred by Section 4.09;
provided, however, that either (a) such encumbrances or restrictions are not materially more restrictive, taken as a whole, than
those contained in this Indenture or the Credit Agreement as it exists on the Initial Issuance Date or (b) the Company determines
and certifies pursuant to an Officers’ Certificate delivered to the Trustee, that any such encumbrance or restriction will not materially
affect the Company’s ability to make principal or interest payments on the Notes, as determined in good faith by the Company, whose
determination shall be conclusive.
Section 4.09. Limitation
on Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including
Acquired Debt), the Company will not, and will not permit any of its Restricted Subsidiaries to, issue any Disqualified Stock, and the
Company will not permit any of its Restricted Subsidiaries (other than a Guarantor) to issue any preferred stock; provided, however, that
the Company and any of its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and any
Restricted Subsidiary that is not a Guarantor may issue preferred stock, if, for the Company’s most recently ended four full fiscal
quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock or preferred stock is issued, the Fixed Charge Coverage Ratio would have been at least 2.0 to 1.0,
determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had
been incurred or Disqualified Stock or preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.
The first paragraph of this
Section 4.09 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”)
or the issuance of any preferred securities described below:
(1) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness under one or more Credit Facilities, provided that, after
giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (1) (with letters
of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder)
and then outstanding does not exceed the greater of (a) $1.75 billion and (b) the sum of the Company’s Borrowing Base
at the time of determination and $850.0 million;
(2) the
incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness;
(3) the
incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes issued and sold on the Initial Issuance Date and
the related Subsidiary Guarantees;
(4) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Finance Lease Obligations, mortgage financings
or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction
or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted
Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause
(4), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (4) and
then outstanding does not exceed the greater of (a) $150.0 million or (b) 7.5% of the Company’s Consolidated Net Tangible
Assets at such time;
(5) the
incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds
of which are used to, extend, refinance, renew, replace, defease or refund Indebtedness that was permitted by this Indenture to be incurred
under the first paragraph of this Section 4.09 or clause (2), (3) or (12) of this paragraph or this clause (5);
(6) the
incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries; provided, however, that:
(a) if
the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to
the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness
and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and
(b) (i) any
subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company
or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither
the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence of such Indebtedness
by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the
incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts;
(8) the
guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that
was permitted to be incurred by another provision of this Section 4.09;
(9) the
incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising
in the ordinary course of business and consistent with past practice;
(10) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of bid, performance, surety and similar bonds
issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees
and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in
each case other than an obligation for money borrowed);
(11) the
issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any preferred
securities; provided, however, that:
(a) any
subsequent issuance or transfer of Equity Interests that results in any such preferred securities being held by a Person other than the
Company or a Restricted Subsidiary of the Company; and
(b) any
sale or other transfer of any such preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company
shall be deemed, in each case, to constitute
an issuance of such preferred securities by such Restricted Subsidiary that was not permitted by this clause (11);
(12) the
incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation meeting
either one of the financial tests set forth in clause (d) of Section 5.01; and
(13) the
incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its
Restricted Subsidiaries of Disqualified Stock, provided that, after giving effect to any such incurrence or issuance, the aggregate principal
amount of all Indebtedness incurred and Disqualified Stock issued under this clause (13) and then outstanding does not exceed the
greater of (a) $110.0 million or (b) 6.0% of the Company’s Consolidated Net Tangible Assets.
For purposes of determining
compliance with this Section 4.09, in the event that an item of Indebtedness (including Acquired Debt) meets the criteria of more
than one of the categories of Permitted Debt described in clauses (1) through (13) above, or is entitled to be incurred pursuant
to the first paragraph of this Section 4.09, the Company will be permitted to classify (or later classify or reclassify in whole
or in part in its sole discretion) such item of Indebtedness in any manner that complies with this Section 4.09. Notwithstanding
the foregoing, any Indebtedness outstanding under the Credit Agreement on the Initial Issuance Date (after giving effect to the application
of the proceeds of the offering of the Initial Notes) shall be considered incurred under clause (1) of Permitted Debt.
The accrual of interest, the
accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms, and the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares or units of
the same class of Disqualified Stock or preferred stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified
Stock or preferred stock for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed
Charges of the Company as accrued to the extent required by the definition of such term. Further, the accounting reclassification of any
obligation of the Company or any of its Restricted Subsidiaries as Indebtedness will not be deemed an incurrence of Indebtedness for purposes
of this Section 4.09.
Section 4.10. Limitation
on Asset Sales.
The Company will not, and
will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the
Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair
market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at
least 75% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale and all other Asset
Sales since June 4, 2015 is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash:
(a) any
liabilities, as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet, of the Company or such Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee)
that are assumed by the transferee of any such assets pursuant to a novation agreement that releases the Company or such Restricted Subsidiary
from further liability;
(b) any
securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180
days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that
conversion;
(c) any
Capital Stock or assets of the kind referred to in clauses (II), (IV) or (V) of the following paragraph; and
(d) any
Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having a fair market
value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (d), not to exceed 5.0% of the
Company’s Consolidated Net Tangible Assets (with the fair market value of each item of Designated Non-cash Consideration being measured
at the time received and without giving effect to subsequent changes in value).
Within 360 days after the
receipt of any Net Proceeds from an Asset Sale (or within 180 days after such 360-day period in the event the Company or any Restricted
Subsidiary enters into a binding commitment with respect to such application within such 360-day period), the Company or any Restricted
Subsidiary may apply those Net Proceeds at its option to any combination of the following:
(I) to
repay, redeem, repurchase or otherwise retire Senior Debt, including Notes;
(II) to
acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business;
(III) to
acquire any Capital Stock of a Person primarily engaged in a Permitted Business if, after giving effect to any such acquisition of Capital
Stock, such Person is or becomes a Restricted Subsidiary of the Company;
(IV) to
make capital expenditures; or
(V) to
acquire other long-term assets that are used or useful in a Permitted Business.
Pending the final application
of any Net Proceeds, the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this
Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess
Proceeds.”
On the 361st day after the
Asset Sale (or, at the Company’s option, any earlier date or, as provided above, on the 541st day after the Asset Sale), if the
aggregate amount of Excess Proceeds then exceeds $20.0 million, the Company will make an Asset Sale Offer to all Holders of Notes, and
to all holders of Pari Passu Indebtedness then outstanding, to purchase the maximum principal amount of Notes and such Pari Passu Indebtedness
that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount
plus accrued and unpaid interest, if any, to the Settlement Date, subject to the right of Holders on the relevant record date to receive
interest due on an interest payment date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds
remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose
not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Indebtedness tendered into such
Asset Sale Offer exceeds the amount of Excess Proceeds, the respective aggregate amount of Notes and such Pari Passu Indebtedness to be
purchased shall be determined on a pro rata basis, and the Trustee shall select the Notes to be purchased in such aggregate amount on
a pro rata basis as set forth in Section 3.09(h) of the Indenture. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds will be reset at zero.
The Company will comply with
the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have breached its obligations under the provisions of this Section 4.10
by virtue of such conflict.
Section 4.11. Limitation
on Transactions with Affiliates.
The Company will not, and
will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each, an “Affiliate Transaction”)
involving aggregate payments or consideration in excess of $10.0 million, unless:
(1) the
Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person, or such Affiliate
Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(2) the
Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $20.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate
certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11 and that such Affiliate
Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors
of the Company, if any.
The following items will not
be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(1) any
employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business;
(2) transactions
between or among any of the Company and its Restricted Subsidiaries;
(3) transactions
with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns an Equity Interest
in such Person;
(4) transactions
effected in accordance with the terms of agreements that are in effect on the Initial Issuance Date, and any amendment or replacement
of any of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company and its Restricted
Subsidiaries in any material respect than the agreement so amended or replaced;
(5) customary
compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary
or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’
liability insurance;
(6) any
issuance of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;
(7) Permitted
Investments or Restricted Payments that are permitted by Section 4.07;
(8) payments
to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Initial
Issuance Date and as it may be amended, modified or supplemented from time to time, provided that any such amendment, modification or
supplement relating to reimbursement of the General Partner for expenses is not less favorable to the Company and its Restricted Subsidiaries
in any material respect than the relevant provision of the Partnership Agreement prior to such amendment, modification or supplement;
(9) in
the case of contracts for the purchase or sale of refined petroleum products or other Hydrocarbons or activities or services reasonably
related thereto, or other operational contracts, any such contracts that are (a) entered into in the ordinary course of business
on terms substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries
with third parties or (b) otherwise on terms not materially less favorable to the Company and its Restricted Subsidiaries than those
that would be available in a transaction with an unrelated third party;
(10) any
Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary
of the Company; provided that such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the
Company or such Restricted Subsidiary, as reasonably determined by the Company; and
(11) any
transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting,
appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary
from a financial point of view or that such transaction meets the requirements of clause (1) of the first paragraph of this Section 4.11.
Section 4.12. Limitation
on Liens.
The Company will not and will
not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or become effective any
Lien of any kind (other than Permitted Liens) securing Indebtedness upon any of their property or assets, now owned or hereafter acquired,
unless the Notes or any Subsidiary Guarantee of such Restricted Subsidiary, as applicable, is secured on an equal and ratable basis with
(or on a senior basis to, in the case of obligations subordinated in right of payment to the Notes or such Subsidiary Guarantee, as the
case may be) the obligations so secured until such time as such obligations are no longer secured by a Lien.
Section 4.13. Additional
Subsidiary Guarantees.
If, after the Initial Issuance
Date, any Restricted Subsidiary of the Company that is not already a Guarantor guarantees any Indebtedness of either of the Issuers or
any Guarantor, or any Domestic Subsidiary, if not then a Guarantor, incurs any Indebtedness under the Credit Agreement, then in either
case that Subsidiary will become a Guarantor by executing a supplemental indenture substantially in the form of Annex A hereto and delivering
it to the Trustee within 20 Business Days of the date on which it guaranteed or incurred such Indebtedness, as the case may be. Any such
Subsidiary Guarantee shall be subject to release pursuant to Section 10.04.
Section 4.14. Corporate
Existence.
Except as otherwise permitted
pursuant to the terms hereof (including consolidation and merger permitted by Section 5.01), the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its partnership existence, and the corporate, partnership or other
existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended
from time to time) of the Company or any such Restricted Subsidiary; provided, however, that the Company shall not be required to preserve
the existence of any of its Restricted Subsidiaries (except Finance Corp.) if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.
Section 4.15. Offer
to Repurchase Upon Change of Control Triggering Event.
(1) Within
30 days following the occurrence of a Change of Control Triggering Event, unless the Issuers have previously or concurrently exercised
their right to redeem all of the Notes pursuant to Section 3.07, the Company shall make a cash tender offer (a “Change of Control
Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess of $2,000) of each Holder’s
Notes at a purchase price (the “Change of Control Payment”) in cash equal to at least 101% of the aggregate principal amount
of Notes repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased to the date of settlement (the “Change
of Control Settlement Date”), subject to the right of Holders on the relevant record date to receive interest due on an interest
payment date that is on or prior to the Change of Control Settlement Date. No later than 30 days following any Change of Control Triggering
Event, unless the Issuers have previously or concurrently exercised their right to redeem all of the Notes pursuant to Section 3.07,
the Company shall send a notice of the Change of Control Offer to each Holder and the Trustee describing the transaction or transactions
that constitute the Change of Control Triggering Event and stating:
(a) that
the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes validly tendered and not validly withdrawn
will be accepted for payment;
(b) the
purchase price and the Change of Control Settlement Date, which shall be no earlier than 30 days but no later than 60 days from the date
such notice is sent;
(c) that
the Change of Control Offer will expire as of the time specified in such notice and that the Company shall pay the Change of Control Purchase
Price for all Notes accepted for purchase promptly thereafter on the Change of Control Settlement Date;
(d) that
any Note not tendered will continue to accrue interest;
(e) that,
unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control Settlement Date;
(f) that
Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, properly endorsed
for transfer, together with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed and
such customary documents as the Company may reasonably request, to the Paying Agent at the address specified in the notice prior to the
termination of the Change of Control Offer;
(g) that
Holders will be entitled to withdraw their election if the Paying Agent receives, prior to the termination of the Change of Control Offer,
a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing its election to have the Notes purchased; and
(h) that
Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess
of $2,000.
If any of the Notes subject to a Change
of Control Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the
procedures of the Depository applicable to repurchases. Further, the Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection
with the repurchase of Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section 4.15, the Company will comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such conflict.
(2) On
or before the Change of Control Settlement Date, the Company shall, to the extent lawful, accept for payment all Notes or portions thereof
(in minimum denominations of $2,000 and in integral multiples of $1,000 in excess of $2,000) properly tendered (and not validly withdrawn)
pursuant to the Change of Control Offer. Promptly thereafter on the Change of Control Settlement Date the Company shall:
(a) deposit
with the Paying Agent by 10:00 a.m., New York City time, an amount equal to the Change of Control Payment in respect of all Notes or portions
of Notes properly tendered (and not validly withdrawn); and
(b) deliver
or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate
principal amount of Notes or portions of Notes being purchased by the Company.
On the Change of Control Settlement
Date, the Paying Agent shall mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes (or, if all the
Notes are then in global form, make such payment through the facilities of the Depository) and, upon receipt of an Authentication Order,
the Trustee shall authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any; provided, however, that each such new Note will be in a principal amount
of $2,000 or an integral multiple of $1,000 in excess of $2,000. The Company shall publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Settlement Date.
(3) The
Change of Control Triggering Event provisions of this Section 4.15 shall be applicable whether or not any other provisions of this
Indenture are applicable.
(4) Prior
to complying with any of the provisions of this Section 4.15, but in any event no later than the Change of Control Settlement Date,
the Company or any Guarantor must either repay all of its other outstanding Senior Debt or obtain the requisite consents, if any, under
all agreements governing such Senior Debt to permit the repurchase of Notes required by this Section 4.15.
(5) The
Company shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if (a) a third party makes
the Change of Control Offer in the manner, at the time and otherwise in compliance with the requirements set forth in this Section 4.15
applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change
of Control Offer or (b) in connection with, or in contemplation of, any publicly announced Change of Control Triggering Event, the
Company or a third party has made an offer to purchase (an “Alternate Offer”) any and all Notes properly tendered at a cash
price equal to or higher than the Change of Control Payment and has purchased all such Notes properly tendered in accordance with the
terms of such Alternate Offer. Notwithstanding anything to the contrary contained in this Indenture, a Change of Control Offer by the
Company or a third party may be made in advance of a Change of Control Triggering Event, conditioned upon the consummation of such Change
of Control Triggering Event, if a definitive agreement is in place for the Change of Control Triggering Event at the time the Change of
Control Offer is made.
(6) In
the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer
or Alternate Offer and the Company (or the third party making the Change of Control Offer or Alternate Offer in lieu of the Company) purchases
all of the Notes held by such Holders, the Issuers will have the right, upon not less than 15 nor more than 60 days’ prior notice
as provided in Section 3.03, given not more than 30 days following the purchase pursuant to the Change of Control Offer or Alternate
Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change
of Control Payment or Alternate Offer price plus, to the extent not included in the Change of Control Payment or Alternate Offer price,
as applicable, accrued and unpaid interest on the Notes that remain outstanding, to the date of redemption (subject to the right of Holders
on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date).
Section 4.16. Permitted
Business Activities.
The Company will not, and
will not permit any Restricted Subsidiary to, engage in any business other than a Permitted Business, except to such extent as would not
be material to the Company and its Restricted Subsidiaries taken as a whole.
Finance Corp. shall not incur
Indebtedness unless (1) the Company is a co-obligor or guarantor of such Indebtedness or (2) the net proceeds of such Indebtedness
are loaned to the Company or a Restricted Subsidiary, used to acquire outstanding debt securities issued by the Company or used to repay
Indebtedness of the Company or a Restricted Subsidiary as permitted under Section 4.09. Finance Corp. shall not engage in any business
not related directly or indirectly to obtaining money or arranging financing for the Company or its Restricted Subsidiaries.
Section 4.17. Covenant
Suspension.
If on any date (a) the
rating assigned to the Notes by both S&P and Moody’s is an Investment Grade Rating, (b) no Default has occurred and is
continuing under this Indenture and (c) the Issuers have delivered to the Trustee an Officers’ Certificate certifying to the
foregoing provisions of this sentence, then beginning on such date the Company and its Restricted Subsidiaries will no longer be subject
to the provisions of Sections 3.09, 4.07, 4.08, 4.09, 4.10, 4.11, 4.16, and clause (d) of Section 5.01 of this Indenture (collectively,
the “Suspended Covenants”); provided, however, that the Company and its Restricted Subsidiaries will remain subject to all
of the other provisions of this Indenture. After the foregoing covenants have been suspended, the Company may not designate any of its
Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of Unrestricted Subsidiary. Thereafter, if either S&P or Moody’s
withdraws its ratings or downgrades the ratings assigned to the Notes below the Investment Grade Rating so that the Notes do not have
an Investment Grade Rating from both S&P and Moody’s, the Company and its Restricted Subsidiaries will thereafter again be subject
to the Suspended Covenants, subject to the terms, conditions and obligations set forth herein (each such date of reinstatement being the
“Reinstatement Date”), and the Company shall give written notice to the Trustee of any such withdrawal or downgrade. Compliance
with the Suspended Covenants with respect to Restricted Payments made after the Reinstatement Date will be calculated in accordance with
the terms of Section 4.07 as though such covenants had been in effect during the entire period of time from which the Notes are issued.
The Company shall send written notice to the Trustee upon commencement of the occurrence of any Reinstatement Date; provided that the
failure to so notify the Trustee shall not be a default under this Indenture. The Trustee shall have no duty to monitor the ratings of
the Notes, shall not be deemed to have any knowledge of the ratings of the Notes and shall have no duty to notify the Holders if the Notes
achieve Investment Grade Ratings.
Section 4.18. Designation
of Restricted and Unrestricted Subsidiaries.
The Board of Directors of
the Company may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary of the Company is designated as an Unrestricted Subsidiary, the aggregate fair market value of all
outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted
Subsidiary will be deemed to be either an Investment made as of the time of the designation that will reduce the amount available for
Restricted Payments under the first paragraph of Section 4.07 or represent Permitted Investments, as determined by the Company. That
designation shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets
the definition of an Unrestricted Subsidiary.
The Board of Directors of
the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that such designation will be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated
on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (2) no Default
or Event of Default would be in existence following such designation.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger,
Consolidation or Sale of Assets.
Neither of the Issuers may,
directly or indirectly, (1) consolidate or merge with or into another Person (whether or not such Issuer is the survivor), or (2) sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions
to another Person, unless:
(a) either
(1) such Issuer is the survivor or (2) the Person formed by or surviving any such consolidation or merger (if other than such
Issuer ) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized
or existing under the laws of the United States, any state of the United States or the District of Columbia; provided, however, that Finance
Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such requirement so long as the Company
is not a corporation;
(b) the
Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Notes and this
Indenture;
(c) immediately
after such transaction no Default or Event of Default exists;
(d) in
the case of a transaction involving the Company and not Finance Corp., either;
(i) the
Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made will, on the date of such transaction after giving pro forma effect
thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph
of Section 4.09 hereof; or
(ii) immediately
after giving effect to such transaction and any related financing transactions on a pro forma basis as if the same had occurred at the
beginning of the applicable four-quarter period, the Fixed Charge Coverage Ratio of the Company or the Person formed by or surviving any
such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition
has been made, will be equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately before such transactions; and
(e) such
Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger
or disposition and such supplemental indenture (if any) comply with this Indenture.
Notwithstanding the restrictions
described in the foregoing clauses (c) and (d), any Restricted Subsidiary (other than Finance Corp.) may consolidate with, merge
into or dispose of all or part of its properties and assets to the Company or another Restricted Subsidiary without complying with the
preceding clauses (c) and (d) in connection with any such consolidation, merger or disposition.
Notwithstanding the second
preceding paragraph of this Section 5.01, the Company may reorganize as any other form of entity in accordance with the following
procedures provided that:
(1) the
reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of
entity other than a limited partnership formed under Delaware law;
(2) the
entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any
state thereof or the District of Columbia;
(3) the
entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes and this Indenture;
(4) immediately
after such reorganization no Default or Event of Default exists; and
(5) such
reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (5) a reorganization
will not be considered materially adverse to the Holders or Beneficial Owners of the Notes solely because the successor or survivor of
such reorganization (a) is subject to federal or state income taxation as an entity or (b) is considered to be an “includible
corporation” of an affiliated group of corporations within the meaning of Section 1504(b) of the Code or any similar state
or local law).
Section 5.02. Successor
Substituted.
Upon any consolidation or
merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets
of an Issuer in accordance with Section 5.01 hereof, the successor formed by such consolidation or into or with which such Issuer
is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and may exercise
every right and power of, such Issuer under this Indenture with the same effect as if such successor had been named as such Issuer herein
and shall be substituted for such Issuer (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition, the provisions of this Indenture referring to the “Company” or “Finance Corp.,”
as the case may be, shall refer instead to the successor and not to the Company or Finance Corp., as the case may be); and thereafter
such Issuer shall be discharged and released from all obligations and covenants under this Indenture and the Notes. The Trustee shall
enter into a supplemental indenture to evidence the succession and substitution of such successor and such discharge and release of such
Issuer.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events
of Default.
An “Event of Default”
occurs if one of the following shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall
be involuntary or be effected by operation of law):
(a) default
for 30 days in the payment when due of interest on the Notes;
(b) default
in payment when due of the principal of, or premium, if any, on the Notes;
(c) failure
by the Company to comply with the provisions of Section 3.09, 4.10, 4.15 or 5.01 hereof;
(d) failure
by the Company for 180 days after notice to the Company by the Trustee or the Holders of at least 25% in principal amount of the Notes
then outstanding to comply with the provisions of Section 4.03;
(e) failure
by the Company for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in principal amount of the Notes
then outstanding to comply with any of its other agreements in this Indenture;
(f) default
under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the Initial Issuance Date, if that default:
(1) is
caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness (a “Payment Default”); or
(2) results
in the acceleration of such Indebtedness prior to its Stated Maturity.
and, in each case, the principal amount
of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $50.0 million or more; provided, however, that if any such Payment Default
is cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within a period of 60 days from the continuation
of such Payment Default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, such Event of Default
and any consequential acceleration of the Notes shall be automatically rescinded, so long as such rescission does not conflict with any
judgment or decree;
(g) failure
by the Company or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of $50.0 million (to the extent not
covered by insurance by a reputable and creditworthy insurer as to which the insurer has not disclaimed coverage), which judgments are
not paid, discharged or stayed for a period of 60 days;
(h) except
as permitted by this Indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm
its obligations under its Subsidiary Guarantee; and
(i) the
Company, Finance Corp., any of the Company’s Restricted Subsidiaries that is a Significant Subsidiary of the Company or any group
of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary of the Company pursuant to or
within the meaning of Bankruptcy Law:
(1) commences
a voluntary case,
(2) consents
in writing to the entry of an order for relief against it in an involuntary case,
(3) consents
in writing to the appointment of a Custodian of it or for all or substantially all of its property,
(4) makes
a general assignment for the benefit of its creditors, or
(5) admits
in writing it generally is not paying its debts as they become due; or
(j) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is
for relief against the Company, Finance Corp., any of the Company’s Restricted Subsidiaries that is a Significant Subsidiary of
the Company or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary of
the Company in an involuntary case;
(2) appoints
a Custodian of the Company, Finance Corp., any of the Company’s Restricted Subsidiaries that is a Significant Subsidiary of the
Company or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary of the
Company or for all or substantially all of the property of the Company, Finance Corp., any of the Company’s Restricted Subsidiaries
that is a Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the Company, that, taken together, would constitute
a Significant Subsidiary of the Company; or
(3) orders
the liquidation of the Company, Finance Corp., any of the Company’s Restricted Subsidiaries that is a Significant Subsidiary of
the Company or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary of the Company;
and the order or decree remains unstayed
and in effect for 60 consecutive days.
Section 6.02. Acceleration.
If any Event of Default occurs
and is continuing, the Trustee, by notice to the Issuers, or the Holders of at least 25% in principal amount of the then outstanding Notes,
by notice to the Issuers and the Trustee, may declare all the Notes to be due and payable immediately. Upon any such declaration, the
Notes shall become due and payable immediately, together with all accrued and unpaid interest, and premium, if any, thereon. Notwithstanding
the preceding, if an Event of Default specified in clause (i) or (j) of Section 6.01 hereof occurs with respect to the
Company, Finance Corp., any of the Company’s Restricted Subsidiaries that is a Significant Subsidiary of the Company or any group
of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary of the Company, all outstanding
Notes shall become due and payable without further action or notice, together with all accrued and unpaid interest, and premium, if any,
thereon. The Holders of a majority in principal amount of the then outstanding Notes by notice to the Trustee may on behalf of all of
the Holders rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing
Events of Default (except with respect to nonpayment of principal, interest or premium, if any, that have become due solely because of
the acceleration) have been cured or waived.
Section 6.03. Other
Remedies.
If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, and premium, if any, and interest
on, the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a
proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver
of Past Defaults.
Holders of a majority in principal
amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default
or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of,
or premium, if any, or interest on, the Notes. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.05. Control
by Majority.
Holders of a majority in principal
amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available
to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
Section 6.06. Limitation
on Suits.
A Holder of a Note may pursue
a remedy with respect to this Indenture or the Notes only if:
(a) the
Holder of a Note gives to the Trustee written notice of a continuing Event of Default;
(b) the
Holders of at least 25% in principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such
Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee indemnity or security satisfactory to the Trustee
against any loss, liability or expense;
(d) the
Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during
such 60-day period the Holders of a majority in principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent
with the request.
A Holder of a Note may not use this Indenture
to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note.
Section 6.07. Rights
of Holders of Notes to Receive Payment.
Notwithstanding any other
provision of this Indenture, the contractual right of any Holder of a Note to receive payment of principal of, and premium, if any, and
interest on, the Note, on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be modified or amended in a manner adverse to any Holder without the consent of such Holder.
Section 6.08. Collection
Suit by Trustee.
If an Event of Default specified
in Section 6.01(a) or (b) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Issuers and the Guarantors for the whole amount of principal of, premium and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. Trustee
May File Proofs of Claim.
The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the Issuers (or any other obligor upon the Notes), their creditors
or their property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any
money pursuant to this Article, it shall pay out the money in the following order:
First: to the Trustee,
its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the Trustee’s costs and expenses of collection;
Second: to Holders
of Notes for amounts due and unpaid on the Notes for principal, premium and interest ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium and interest, respectively; and
Third: to the Issuers
or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record
date and payment date for any payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking
for Costs.
In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court
in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court
in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent man would exercise or use under the same circumstances in the
conduct of his own affairs.
(b) Except
during the continuance of an Event of Default:
(i) the
duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the facts or accuracy of any conclusion contained therein).
(c) The
Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) this
paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent
jurisdiction that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with written directions received
by it from the Holders of a majority in principal amount of the then outstanding Notes; and
(iv) no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial or personal liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity or security against such risk or liability is not reasonably assured
to it.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to this Section 7.01
and Section 7.02.
(e) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with an Issuer. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02. Rights
of Trustee.
(a) The
Trustee may conclusively rely upon any document (including electronic communications) believed by it to be genuine and to have been signed,
sent or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion
of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights
or powers conferred upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from an Issuer shall be sufficient if signed
by an Officer of such Issuer.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holder shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The
Trustee shall have no duty to inquire as to the performance of the Company’s covenants in Article 4 hereof. In addition, the
Trustee shall not be deemed to have knowledge of any Default or Event of Default except: (1) any Event of Default occurring pursuant
to Section 6.01(a) or 6.01(b) hereof; or (2) any Default or Event of Default of which a Responsible Officer shall
have received written notification or obtained actual knowledge.
(h) The
permissive right of the Trustee to act hereunder shall not be construed as a duty.
(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 (including as an Agent) and in its capacity
as Trustee under any other agreement executed in connection with this Indenture to which the Trustee is a party.
(j) In
no event shall the Trustee be liable to any Person for any lost profits or special, punitive, indirect, consequential or incidental loss
or damage of any kind whatsoever, even if the Trustee has been advised of the likelihood of such loss or damage.
(k) The
Trustee may request that the Issuers deliver an Officers’ Certificate setting forth the names of individuals and titles of officers
authorized at such times to take specified actions pursuant to this Indenture.
(l) The
Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason
of any occurrence beyond the control of the Trustee that prevents the Trustee from performing such act or fulfilling such duty, obligation
or responsibility hereunder (including but not limited to any act or provision of any present or future law or regulation or governmental
authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability
of the Federal Reserve Bank wire, facsimile or other wire or communication facility)
(m) The
Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers under this Indenture.
Section 7.03. Individual
Rights of Trustee.
The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuers, any Guarantor or any Affiliate
of the Company with the same rights it would have if it were not Trustee.. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee’s
Disclaimer.
The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for either
Issuer’s use of the proceeds from the Notes or any money paid to an Issuer or upon either Issuer’s direction under any provision
of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05. Notice
of Defaults.
If a Default or Event of Default
occurs and is continuing and if it is actually known by a Responsible Officer of the Trustee, the Trustee shall send to Holders of Notes
a notice of the Default or Event of Default within 90 days after it is actually known to a Responsible Officer of the Trustee. Except
in the case of a Default or Event of Default in payment of principal of or premium, if any, or interest on any Note, the Trustee may withhold
the notice if and so long as a Responsible Officer in good faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 7.06. [Reserved].
Section 7.07. Compensation
and Indemnity.
The Issuers shall pay to the
Trustee and the Agents from time to time such reasonable compensation as the Issuers and the Trustee may agree in writing for the Trustee’s
acceptance of this Indenture and services hereunder. The Trustee’s compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Issuers shall reimburse each of the Trustee and the Agents promptly upon request for all reasonable
disbursements, advances, tax, fees and expenses incurred or made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
The Issuers and the Guarantors
shall indemnify and hold harmless each of the Trustee and the Agents, jointly and severally, against any and all losses, damage, claims,
action, suit or proceeding at law or in equity, fines, penalties, liability, cost or expenses (including attorneys’ fees and expenses)
incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Issuers and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by an Issuer, any Guarantor or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or willful misconduct. The Trustee shall notify the Issuers and the Guarantors promptly of any claim (other
than a claim by an Issuer or any Guarantor) for which it may seek indemnity. Failure by the Trustee to so notify the Issuers and the Guarantors
shall not relieve the Issuers or the Guarantors of their obligations hereunder. The Issuers and the Guarantors shall defend such claim
and the Trustee shall reasonably cooperate in the defense. The Trustee may have separate counsel and the Issuers and the Guarantors shall
pay the reasonable fees and expenses of such counsel; provided that the Issuers and the Guarantors will not be required to pay
such fees and expenses if they assume the Trustee’s defense with counsel acceptable to and approved by the Trustee (such approval
not to be unreasonably withheld) and there is no conflict of interest between the Issuers and the Trustee in connection with such defense.
The Issuers and the Guarantors need not pay for any settlement made without their consent, which consent shall not be unreasonably withheld.
Neither the Issuers nor the Guarantors need reimburse the Trustee for any expense or indemnity against any liability or loss of the Trustee
to the extent such expense, liability or loss is attributable to the negligence or willful misconduct of the Trustee as finally adjudicated
by a court of competent jurisdiction.
The obligations of the Issuers
and the Guarantors under this Section 7.07 shall survive the satisfaction and discharge of this Indenture and the resignation or
removal of the Trustee.
To secure the Issuers’
and the Guarantors’ payment obligations in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money
or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall
survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.01(i) or (j) hereof occurs, the expenses and the compensation
for the services (including the fees and expenses of its agents and counsel) are intended to constitute administrative expenses for purposes
of priority under any Bankruptcy Law.
Section 7.08. Replacement
of Trustee.
A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section.
The Trustee may resign in
writing upon 30 days’ notice at any time and be discharged from the trust hereby created by so notifying the Issuers. The Holders
of Notes of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuers
in writing upon 30 days’ notice and may appoint a successor trustee with the consent of the Issuers. The Issuers may remove the
Trustee if:
(a) the
Trustee fails to comply with Section 7.10 hereof;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
receiver, Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason, the Issuers shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint
a successor Trustee to replace the successor Trustee appointed by the Issuers.
If a successor Trustee does
not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the Holders of Notes
of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee, after written
request by any Holder of a Note who has been a Holder of a Note for at least six months, fails to comply with Section 7.10 hereof,
such Holder of a Note may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Issuers. Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall send a notice of its succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject
to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Issuers’ and the Guarantors’ obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor
Trustee by Merger, etc.
If the Trustee consolidates,
merges or converts into, sells or transfers all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee. As soon as practicable, the successor Trustee shall send a notice
of its succession to the Issuers and the Holders of the Notes.
Section 7.10. Eligibility;
Disqualification.
There shall at all times be
a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal
or state authorities and that has a combined capital and surplus of at least $50 million as set forth in its most recent published
annual report of condition.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option
to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at the option
of their respective Boards of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, exercise their
rights under either Section 8.02 or 8.03 hereof with respect to all outstanding Notes upon compliance with the conditions set forth
below in this Article 8.
Section 8.02. Legal
Defeasance and Discharge.
Upon the Issuers’ exercise
under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuers shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have discharged their obligations with respect to all outstanding Notes,
and each Guarantor shall be deemed to have discharged its obligations with respect to its Subsidiary Guarantee, on the date the conditions
set forth in Section 8.04 below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means
that the Issuers shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, and each Guarantor
shall be deemed to have paid and discharged its Subsidiary Guarantee (which in each case shall thereafter be deemed to be “outstanding”
only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (a) and (b) below)
and to have satisfied all its other obligations under such Notes or Subsidiary Guarantee and this Indenture (and the Trustee, on demand
of and at the expense of the Issuers, shall execute proper instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive solely
from the trust fund described in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect of the principal
of, and premium, if any, and interest on, such Notes when such payments are due, (b) the Issuers’ obligations with respect
to such Notes under Sections 2.03, 2.04, 2.06, 2.07, 2.09 and 4.02 hereof and the Appendix, (c) the rights, powers, trusts,
duties, indemnities and immunities of the Trustee hereunder and the Issuers’ and the Guarantors’ obligations in connection
therewith and (d) the Legal Defeasance provisions of this Article 8. Subject to compliance with this Article 8, the Issuers
may exercise their option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
If the Issuers exercise their
Legal Defeasance option, each Guarantor will be released and relieved of any obligations under its Subsidiary Guarantee, and any security
for the Notes (other than the trust) will be released.
Section 8.03. Covenant
Defeasance.
Upon the Issuers’ exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuers shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be released from their obligations under the covenants contained in Section 3.09,
Article 4 (other than those in Sections 4.01, 4.02, 4.06 and 4.14) and in clause (d) of Section 5.01 hereof on and after
the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter
be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences
of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder.
For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuers and any Guarantor may omit to comply
with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon
the Issuers’ exercise under Section 8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(c) through 6.01(h) hereof shall not constitute Events
of Default.
If the Issuers exercise their
Covenant Defeasance option, each Guarantor will be released and relieved of any obligations under its Subsidiary Guarantee and any security
for the Notes (other than the trust) will be released.
Section 8.04. Conditions
to Legal or Covenant Defeasance.
In order to exercise either
Legal Defeasance or Covenant Defeasance:
(a) the
Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and premium, if any, and interest
on, the outstanding Notes on the date of fixed maturity or on the applicable redemption date, as the case may be, and the Issuers must
specify whether the Notes are being defeased to the date of fixed maturity or to a particular redemption date;
(b) in
the case of an election under Section 8.02 hereof, the Issuers shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that:
(1) the
Issuers have received from, or there has been published by, the Internal Revenue Service a ruling; or
(2) since
the Initial Issuance Date, there has been a change in the applicable federal income tax law,
in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in
the case of an election under Section 8.03 hereof, the Issuers shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to 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;
(d) no
Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness)
and the granting of Liens to secure such borrowings);
(e) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture and the agreements or instruments governing any other Indebtedness being defeased, discharged
or replaced) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(f) the
Issuers shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Issuers with the
intent of preferring the Holders over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding
creditors of the Issuers or others; and
(g) the
Issuers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05. Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06
hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 8.04
or 8.08 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions
of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or any of its Subsidiaries
acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuers shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities
deposited pursuant to Section 8.04 or 8.08 hereof or the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8
to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuers from time to time upon the written request of the Issuers
any money or non-callable Government Securities held by it as provided in Section 8.04 or 8.08 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which
may be the opinion delivered under Section 8.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance, Covenant Defeasance or Discharge, as the case may be.
Section 8.06. Repayment
to Issuers.
Subject to applicable escheat
and abandoned property laws, any money or non-callable Government Securities deposited with the Trustee or any Paying Agent, or then held
by an Issuer, in trust for the payment of the principal of or premium or interest on any Note and remaining unclaimed for two years after
such principal, premium or interest has become due and payable shall be paid to the Issuers on their written request or (if then held
by an Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured creditor, look only to
the Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money or non-callable
Government Securities, and all liability of the Issuers as trustee thereof, shall thereupon cease.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent
is unable to apply any money or non-callable Government Securities in accordance with Section 8.05 hereof, by reason of any order
or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers’
obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02
or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.05
hereof; provided, however, that, if an Issuer makes any payment of principal of, or premium or interest on, any Note following the reinstatement
of its obligations, such Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money
held by the Trustee or Paying Agent.
Section 8.08. Discharge.
This Indenture shall be satisfied
and discharged and shall cease to be of further effect as to all Notes issued hereunder (except for (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in clause (1)(b) of this Section 8.08, and as more fully set
forth in such clause (1)(b), payments in respect of the principal of, and premium, if any, and interest on, such Notes when such payments
are due, (b) the Issuers’ obligations with respect to such Notes under Sections 2.03, 2.04, 2.06, 2.07, 2.09 and 4.02 hereof
and the Appendix and (c) the rights, powers, trusts, duties, indemnities and immunities of the Trustee hereunder and the Issuers’
obligations in connection therewith), when:
(1) either:
(a) all
Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment
money has been deposited in trust and thereafter repaid to the Issuers, have been delivered to the Trustee for cancellation; or
(b) all
Notes that have not been delivered to the Trustee for cancellation have become due and payable or will become due and payable within one
year by reason of the sending of a notice of redemption or otherwise, and the Issuers or any Guarantor has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee
for cancellation for principal, premium, if any, and accrued interest to the date of fixed maturity or redemption;
(2) in
the case of clause (1)(b) above, no Default or Event of Default has occurred and is continuing on the date of the deposit, or if
a Default or Event of Default has occurred, the penalties due in connection with such Default or Event of Default have been paid before
or on the date of the deposit, and no Default or Event of Default will occur as a result of the deposit (other than a Default or Event
of Default resulting from the borrowing or securing of funds to be applied to such deposit) and the deposit will not result in a breach
or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements or
instruments governing any other Indebtedness being defeased, discharged or replaced) to which the Company or any of its Subsidiaries is
a party or by which the Company or any of its Subsidiaries is bound;
(3) the
Issuers or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture;
(4) the
Issuers have delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at fixed maturity
or the redemption date, as the case may be; and
(5) the
Issuers have delivered an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge of this Indenture (“Discharge”) have been satisfied.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without
Consent of Holders of Notes.
Notwithstanding Section 9.02
of this Indenture, without the consent of any Holder of Notes, the Issuers, the Guarantors and the Trustee may amend or supplement this
Indenture or the Notes:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
provide for uncertificated Notes in addition to or in place of certificated Notes;
(c) to
provide for the assumption of an Issuer’s obligations to Holders of Notes pursuant to Article 5 hereof;
(d) to
make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any such Holder, provided that any change to conform this Indenture to the Offering Memorandum shall not be
deemed to adversely affect such legal rights;
(e) to
secure the Notes or the Subsidiary Guarantees pursuant to the requirements of Section 4.12 or otherwise;
(f) to
provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture;
(g) to
add any additional Guarantor or to evidence the release of any Guarantor from its Subsidiary Guarantee, in each case as provided in this
Indenture;
(h) [reserved];
or
(i) to
evidence or provide for the acceptance of appointment under this Indenture of a successor Trustee; or
(j) to
make any amendment to the provisions of this Indenture relating to the transfer and legending of the Notes as permitted by this Indenture,
including, without limitation, to facilitate the issuance and administration of the Notes, or, if incurred in compliance with this Indenture,
Additional Notes; provided, however, that
(1) compliance
with this Indenture as so amended would not result in the Notes being transferred in violation of the Securities Act or any applicable
securities law; and
(2) such
amendment does not materially and adversely affect the rights of Holders to transfer Notes.
Upon the request of the Company,
and upon receipt by the Trustee of the documents described in Section 9.06 hereof, the Trustee shall join with the Issuers and the
Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make
any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties, indemnities or immunities under this Indenture or otherwise.
Section 9.02. With
Consent of Holders of Notes.
Except as provided above in
Section 9.01 and below in this Section 9.02, the Issuers, the Guarantors and the Trustee may amend or supplement this Indenture
and the Notes may be amended or supplemented with the consent of the Holders of a majority in principal amount of the then outstanding
Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes),
and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default or compliance with any provision of this Indenture
or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including,
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for Notes). However, without
the consent of each Holder affected, an amendment, supplement or waiver may not (with respect to any Notes held by a non-consenting Holder):
(a) reduce
the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the principal of or change the fixed maturity of any Note or alter the provisions with respect to the redemption or repurchase of the
Notes (except (i) for provisions relating to minimum notices required for redemption of Notes described in Article 3 or in the
terms of the Notes and (ii) as provided in Sections 3.09, 4.10 and 4.15 hereof);
(c) reduce
the rate of or change the time for payment of interest on any Note;
(d) waive
a Default or Event of Default in the payment of principal of, or interest or premium, if any, on, the Notes (except a rescission of acceleration
of the Notes by the Holders of a majority in principal amount of the Notes and a waiver of the payment default that resulted from such
acceleration);
(e) make
any Note payable in currency other than that stated in the Notes;
(f) make
any change in the provisions of this Indenture relating to waivers of past Defaults or the contractual rights of Holders of Notes to receive
payments of principal of, or interest or premium, if any, on, the Notes (other than as permitted in clause (g) below);
(g) waive
a redemption or repurchase payment with respect to any Note (other than a payment required by Sections 3.09, 4.10 and 4.15 hereof);
(h) release
any Guarantor from any of its obligations under its Subsidiary Guarantee or this Indenture, except in accordance with the terms of this
Indenture; or
(i) make
any change in the preceding amendment, supplement and waiver provisions.
Upon the request of the Issuers,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and
upon receipt by the Trustee of the documents described in Section 9.06 hereof, the Trustee shall join with the Issuers and the Guarantors
in the execution of such amended or supplemental indenture, unless such amended or supplemental indenture affects the Trustee’s
own rights, duties, indemnities 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 amended or supplemental indenture.
It shall not be necessary
for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement
or waiver under this Section becomes effective, the Company shall send to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to send such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such amended or supplemental Indenture or waiver. A consent to any amendment, supplement
or waiver under this Indenture given in connection with a purchase, tender or exchange of a Holder’s Notes shall not be rendered
invalid by such purchase, tender or exchange.
Section 9.03. [Reserved].
Section 9.04. Effect
of Consents.
After an amendment, supplement
or waiver becomes effective, it shall bind every Holder, unless it makes a change described in any of clauses (a) through (i) of
Section 9.02, in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and
every subsequent Holder of a Note or portion of a Note that evidences the same indebtedness as the consenting Holder’s Note.
Section 9.05. Notation
on or Exchange of Notes.
The Trustee may place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuers, in exchange for all Notes, may issue
and, upon receipt of an Authentication Order, the Trustee shall authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate
notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee
to Sign Amendments, etc.
The Trustee shall sign any
amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect
the rights, duties, liabilities, indemnities or immunities of the Trustee. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying upon, an Officers’ Certificate
and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture
and that all conditions precedent are satisfied.
ARTICLE 10
GUARANTEES OF NOTES
Section 10.01. Subsidiary
Guarantees.
Subject to this Article 10,
each of the Guarantors hereby, jointly and severally, unconditionally guarantees, on a senior unsecured basis, to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes held thereby and the Obligations of the Issuers hereunder and thereunder, that: (a) the principal of,
and premium, if any, and interest on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether
at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest (to the extent permitted by law) on the
overdue principal of, and premium, if any, and interest on, the Notes, and all other payment Obligations of the Issuers to the Holders
or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly
paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether
at Stated Maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed
for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this
Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate
the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers.
The Guarantors hereby agree
that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or
thereof, the recovery of any judgment against an Issuer, any action to enforce the same or any other circumstance (other than complete
performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to the
extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency
or bankruptcy of an Issuer, any right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and
covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the Obligations contained in the Notes
and this Indenture.
If any Holder or the Trustee
is required by any court or otherwise to return to an Issuer, the Guarantors, or any Custodian, Trustee or other similar official acting
in relation to any of the Issuers or the Guarantors, any amount paid by an Issuer or any Guarantor to the Trustee or such Holder, the
Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that
it shall not be entitled to, and hereby waives, any right of subrogation in relation to the Holders in respect of any Obligations guaranteed
hereby.
Each Guarantor further agrees
that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (a) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of its Subsidiary Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed thereby, and (b) in
the event of any declaration of acceleration of such Obligations as provided in Article 6 hereof, such Obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantor for the purpose of its Subsidiary Guarantee. The Guarantors shall
have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Subsidiary Guarantees.
Section 10.02. Execution
and Delivery.
To evidence its Subsidiary
Guarantee set forth in Section 10.01, each Guarantor hereby agrees that this Indenture or a supplement thereto shall be executed
on behalf of such Guarantor by an Officer or person holding an equivalent title. Each Guarantor hereby agrees that its Subsidiary Guarantee
set forth in Section 10.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of
such Subsidiary Guarantee on the Notes. If an Officer whose signature is on this Indenture no longer holds that office at the time the
Trustee authenticates the Note, the Subsidiary Guarantees shall be valid nevertheless. The delivery of any Note by the Trustee, after
the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantees set forth in this Indenture on behalf
of the Guarantors.
Section 10.03. Guarantors
May Consolidate, etc., on Certain Terms.
(a) No
Guarantor shall sell or otherwise dispose of all or substantially all of its properties or assets to, or consolidate with or merge with
or into (whether or not such Guarantor is the surviving Person), another Person (other than the Company or another Guarantor), unless,
(i) either (1) the Person acquiring the properties or assets in any such sale or other disposition or the Person formed by or
surviving any such consolidation or merger (if other than such Guarantor) unconditionally assumes all the obligations of such Guarantor,
pursuant to a supplemental indenture, substantially in the form of Annex A hereto, under the Notes, this Indenture and its Subsidiary
Guarantee on terms set forth therein, or (2) such sale or other disposition does not violate the provisions of Section 4.10,
and (ii) immediately after giving effect to such transaction, no Default or Event of Default exists.
(b) In
the case of any such consolidation or merger and upon the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and substantially in the form of Annex A hereto, of the Subsidiary Guarantee and the due and punctual performance
of all of the covenants of this Indenture to be performed by the Guarantor, such successor Person shall succeed to and be substituted
for the Guarantor with the same effect as if it had been named herein as a Guarantor.
Section 10.04. Releases
of Subsidiary Guarantees.
The Subsidiary Guarantee
of a Guarantor shall be automatically released: (1) in connection with any sale or other disposition of all or substantially all
of the properties or assets of such Guarantor (including by way of merger or consolidation) to a Person that is not (either before or
after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition does
not violate the provisions of Section 4.10; (2) in connection with any sale or other disposition of Capital Stock of such Guarantor
to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company,
if the sale or other disposition does not violate the provisions of Section 4.10 and the Guarantor ceases to be a Restricted Subsidiary
of the Company as a result of such sale or other disposition; (3) if the Company designates any Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary in accordance with Section 4.18 of this Indenture; (4) upon Legal Defeasance or Covenant
Defeasance or Discharge in accordance with Article 8; (5) upon the liquidation or dissolution of such Guarantor, provided no
Default or Event of Default has occurred that is continuing; or (6) at such time as such Guarantor ceases to both (i) guarantee
any other Indebtedness of either of the Issuers and any other Guarantor and (ii) be an obligor with respect to any Indebtedness
under the Credit Agreement.
Upon delivery by the Company
to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that any of the conditions described in the
foregoing clauses (1) – (6) has occurred, the Trustee shall execute any documents reasonably requested by the Company
in order to evidence the release of any Guarantor from its obligations under its Subsidiary Guarantee. Any Guarantor not released from
its obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of, and premium, if any, and interest
on, the Notes and for the other obligations of such Guarantor under this Indenture as provided in this Article 10.
Section 10.05. [Reserved].
Section 10.06. Limitation
on Guarantor Liability.
The obligations of each Guarantor
under its Subsidiary Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities
of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect
of the obligations of such other Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture,
result in the obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal or state law and not otherwise being void or voidable under any similar laws affecting the rights of creditors generally.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust
Indenture Act Not Applicable.
This Indenture shall not
be governed by or subject to the Trust Indenture Act of 1939, as amended.
Section 11.02. Notices.
Any notice or communication
by an Issuer, any Guarantor or the Trustee to the others is duly given if in writing (in the English language) and delivered in person
or mailed by first class mail (registered or certified, return receipt requested), or sent by telecopier or email or overnight air courier
guaranteeing next day delivery, to the others’ address:
If to any of the Issuers
or the Guarantors:
Global Partners LP
P.O. Box
9161
800
South Street, Suite 500
Waltham,
Massachusetts 02453
Attention:
Chief Legal Officer
Telecopier
No.: (781) 398-9211
with a copy (not constituting
notice) to:
Vinson & Elkins L.L.P.
1114
6th Avenue, 32nd Floor
New
York, New York 10036-7703
Attention:
Brenda Lenahan
Telecopier
No.: (917) 849-5360
If to the Trustee:
Regions Bank
Corporate
Trust Department
1180
West Peachtree Street
Suite 1200
Atlanta,
Georgia 30309-3407
Attention:
Corporate Team Deal Manager – Global Partners LP
Telephone
No.: (404) 221-4588
Email:
Vanessa.Williams2@regions.com
An Issuer, any of the Guarantors
or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications
(other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied or sent electronically;
and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery in each
case to the address shown above.
Any notice or communication
to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing
next day delivery to its address shown on the register kept by the Registrar; provided, however, any notice given to the Holder of a
Global Note shall be given in accordance with the applicable procedures of the Depository. Failure to send a notice or communication
to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication
is sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If either of the Issuers
sends a notice or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time.
The Trustee agrees to accept
and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar
unsecured electronic methods. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such
instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly
from the Trustee’s reliance upon and compliance with such instructions notwithstanding that such instructions conflict or are inconsistent
with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use
of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee
acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 11.03. [Reserved].
Section 11.04. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by an Issuer to the Trustee to take any action under this Indenture, such Issuer shall furnish to the Trustee:
(a) an
Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and
(b) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 11.05. Statements
Required in Certificate or Opinion.
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(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 or she 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 satisfied; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been satisfied.
Section 11.06. Rules by
Trustee and Agents.
The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
Section 11.07. No
Personal Liability of Directors, Officers, Employees and Unitholders.
None of the General Partner
or any director, officer, partner, employee, incorporator, manager or unitholder or other owner of Capital Stock of the General Partner,
the Issuers or any Guarantor, as such, shall have any liability for any obligations of the Issuers or any Guarantor under the Notes,
this Indenture or the Subsidiary Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes.
Section 11.08. Governing
Law; Waiver of Jury Trail.
THIS INDENTURE, THE NOTES
AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE ISSUER, THE GUARANTORS,
THE TRUSTEE AND THE HOLDERS, BY THEIR ACCEPTANCE OF THE NOTES HEREBY, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES
OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Section 11.09. No
Adverse Interpretation of Other Agreements.
This Indenture may not be
used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 11.10. Successors.
All agreements of the Issuers
and the Guarantors in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 11.11. Severability.
In case any provision in
this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 11.12. Table
of Contents, Headings, etc.
The Table of Contents, Cross-Reference
Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 11.13. Counterparts;
Electronic Signatures.
The parties may sign any
number of copies of this Indenture, and each party hereto may sign any number of separate copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement. 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. Except with respect to authentication of a Note, signatures of the
parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes, and the words “execution,”
“signed,” “signature,” and words of similar import in this Indenture and the Note shall be deemed to include
electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity, and
enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided
for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000 (15 U.S.C. §§ 7001-7006),
the Electronic Signatures and Records Act of 1999 (N.Y. State Tech. §§ 301-309), or any other similar state laws based on the
Uniform Electronic Transactions Act; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation
to agree to accept electronic signatures in any form or in any format unless expressly agreed to by such Trustee pursuant to procedures
approved by such Trustee.
Section 11.14. Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
the Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing, and may be given or obtained in connection with a purchase of, or tender offer or exchange offer
for, outstanding Notes; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and conclusive in favor of the Trustee and the Issuers if made in the manner provided in this Section 11.14.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution
or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such witness, notary or officer the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) Notwithstanding
anything to the contrary contained in this Section 11.14, the principal amount and serial numbers of Notes held by any Holder, and
the date of holding the same, shall be proved by the register of the Notes maintained by the Registrar as provided in Section 2.03.
(d) If
the Issuers shall solicit from the Holders of the Notes any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Issuers may, at their option, fix in advance a record date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Issuers shall have no obligation to do so. Such record date shall
be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith or the date
of the most recent list of Holders forwarded to the Trustee prior to such solicitation pursuant to Section 2.05 and not later than
the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the Holders at the close of business on such record date
shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of the then outstanding Notes
have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the then outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture
not later than eleven months after the record date.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder
of the same Note and the Holder of every Note issued upon the registration or transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or an Issuer in reliance thereon, whether or not notation
of such action is made upon such Note.
(f) Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Note may do so itself
with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant
to such appointment with regard to all or any part of such principal amount.
(g) For
purposes of this Indenture, any action by the Holders that may be taken in writing may be taken by electronic means or as otherwise reasonably
acceptable to the Trustee.
Section 11.15. Patriot
Act.
In order to comply with the
laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation,
those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the
United States (“Applicable Law”), the Trustee and Agents are required to obtain, verify, record and update certain information
relating to individuals and entities which maintain a business relationship with the Trustee and Agents. Accordingly, each of the parties
agrees to provide to the Trustee and Agents, upon their request from time to time such identifying information and documentation as may
be available for such party in order to enable the Trustee and Agents to comply with Applicable Law.
Section 11.16. When
Notes Disregarded.
In determining whether the
holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company,
or by any Affiliate of the Company shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which the Trustee actually knows
are so owned or has received written notice thereof are so owned shall be so disregarded. Subject to the foregoing, only Notes outstanding
at the time shall be considered in any such determination.
SIGNATURES
|
GLOBAL
PARTNERS LP |
|
|
|
By: |
Global
GP LLC, its General Partner |
|
|
|
|
By: |
/s/
Gregory B. Hanson |
|
|
|
Name:
Gregory B. Hanson |
|
|
|
Title: Chief Financial Officer |
|
|
|
GLP
FINANCE CORP. |
|
|
|
|
By: |
/s/
Gregory B. Hanson |
|
|
|
Name:
Gregory B. Hanson |
|
|
|
Title: Chief Financial Officer |
[Signature
Page to Indenture]
Guarantors
|
GLOBAL
OPERATING LLC |
|
|
|
By: |
Global
Partners LP, its Sole Member |
|
|
|
By: |
Global
GP LLC, its General Partner |
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By: |
/s/
Gregory B. Hanson |
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Name: Gregory B. Hanson |
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|
|
Title: Chief Financial Officer |
|
GLOBAL
COMPANIES LLC |
|
CHELSEA
SANDWICH LLC |
|
ALLIANCE
ENERGY LLC |
|
CASCADE
KELLY HOLDINGS LLC |
|
BASIN
TRANSLOAD, LLC |
|
GLOBAL
EVERETT LANDCO LLC |
|
GLOBAL
TERMINAL HOLDINGS LLC |
|
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By: |
Global
Operating LLC, |
|
|
its
Sole Member |
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|
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|
By: |
Global
Partners LP, |
|
|
its
Sole Member |
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|
By: |
Global
GP LLC, |
|
|
its
General Partner |
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By: |
/s/
Gregory B. Hanson |
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|
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Name: Gregory B. Hanson |
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|
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Title: Chief Financial Officer |
[Signature
Page to Indenture]
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BURSAW OIL LLC |
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By: |
Alliance
Energy LLC, |
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its
Sole Member |
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By: |
Global
Operating LLC, |
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its
Sole Member |
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By: |
Global
Partners LP, |
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its
Sole Member |
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By: |
Global
GP LLC, |
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its
General Partner |
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By: |
/s/
Gregory B. Hanson |
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|
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Name: Gregory B. Hanson |
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Title: Chief Financial Officer |
|
GLOBAL
MONTELLO GROUP CORP. |
|
GLEN
HES CORP. |
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WARREN
EQUITIES INC. |
|
WAREX
TERMINALS CORPORATION |
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DRAKE
PETROLEUM COMPANY, INC. |
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PURITAN
OIL COMPANY, INC. |
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MARYLAND
OIL COMPANY, INC. |
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MERIDIAN
BUNKER CORP. |
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GLOBAL
PARTNERS ENERGY CANADA ULC |
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By: |
/s/
Gregory B. Hanson |
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Name: Gregory B. Hanson |
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Title: Chief Financial Officer |
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SPR HOLDINGS LLC |
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By: |
Global
Montello Group Corp., |
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its
Sole Member |
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By: |
/s/
Gregory B. Hanson |
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Name: Gregory B. Hanson |
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Title: Chief Financial Officer |
[Signature Page to
Indenture]
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SPR OPERATOR LLC |
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By: |
SPR
Holdings LLC, |
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its
Sole Member |
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By: |
Global
Montello Group Corp., |
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its
Sole Member |
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By: |
/s/
Gregory B. Hanson |
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Name: Gregory B. Hanson |
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Title: Chief Financial Officer |
[Signature Page to
Indenture]
|
REGIONS
BANK, as Trustee |
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|
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By: |
/s/ Vanessa Williams |
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|
Name: Vanessa Williams |
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Title: Vice President |
[Signature
Page to Indenture]
RULE 144A/REGULATION S APPENDIX
PROVISIONS RELATING TO NOTES
1. Definitions
1.1 Definitions.
For the purposes of this
Appendix the following terms shall have the meanings indicated below:
“Depository”
means The Depository Trust Company, its nominees and their respective successors.
“Initial Notes”
means (1) $450.0 million aggregate principal amount of 8.250% Senior Notes due 2032 issued on the Initial Issuance Date and (2) Additional
Notes, if any, issued in a transaction exempt from the registration requirements of the Securities Act.
“Notes” means
the Initial Notes and the Additional Notes, treated as a single class.
“Notes Custodian”
means the custodian with respect to a Global Note (as appointed by the Depository), or any successor Person thereto and shall initially
be the Trustee.
“Transfer Restricted
Securities” means Notes that bear or are required to bear the legend set forth in Section 2.3(b) hereof.
1.2 Other
Definitions.
Term |
|
Defined
in Section: |
“Agent
Members” |
|
2.1(b) |
“Distribution
Compliance Period” |
|
2.1(b) |
“Global
Notes” |
|
2.1(a) |
“Regulation
S” |
|
2.1(a) |
“Regulation
S Notes” |
|
2.1(a) |
“Restricted
Global Note” |
|
2.1(a) |
“Rule 144A” |
|
2.1(a) |
“Rule 144A
Notes” |
|
2.1(a) |
2. The
Notes.
2.1 (a) Form and
Dating. Initial Notes offered and sold to QIBs in reliance on Rule 144A (“Rule 144A Notes”) under the Securities
Act (“Rule 144A”) or in reliance on Regulation S (“Regulation S Notes”) under the Securities Act
(“Regulation S”), shall be issued initially in the form of one or more permanent global Notes in definitive, fully registered
form without interest coupons with the global Notes legend and restricted Notes legend set forth in Exhibit 1 hereto (each, a “Restricted
Global Note”), which shall be deposited on behalf of the purchasers of the Initial Notes represented thereby with the Trustee,
as custodian for the Depository (or with such other custodian as the Depository may direct), and registered in the name of the Depository
or a nominee of the Depository, duly executed by the Issuers and authenticated by the Trustee as hereinafter provided. Beneficial interests
in a Restricted Global Note representing Initial Notes sold in reliance on either Rule 144A or Regulation S may be held through
Euroclear or Clearstream, as indirect participants in the Depository. The aggregate principal amount of the Global Notes may from time
to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter
provided. Restricted Global Notes are sometimes referred to in this Appendix as “Global Notes.”
(b) Book-Entry
Provisions. This Section 2.1(b) shall apply only to a Global Note deposited with or on behalf of the Depository.
The Issuers shall execute
and the Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver initially one or more Global Notes that
(a) shall be registered in the name of the Depository for such Global Note or Global Notes or the nominee of such Depository and
(b) shall be delivered by the Trustee to such Depository or pursuant to such Depository’s instructions or held by the Trustee
as custodian for the Depository. If such Global Notes are Restricted Global Notes, then separate Global Notes shall be issued to represent
Rule 144A Notes and Regulation S Notes so long as required by law or the Depository.
Members of, or participants
in, the Depository (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their
behalf by the Depository or by the Trustee as the custodian of the Depository or under such Global Note, and the Issuers, the Trustee
and any agent of the Issuers or the Trustee shall be entitled to treat the Depository as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuers, the Trustee or any agent of the Issuers
or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as
between the Depository and its Agent Members, the operation of customary practices of such Depository governing the exercise of the rights
of a holder of a beneficial interest in any Global Note.
Until the 40th day after
the later of the commencement of the offering of any Initial Notes and the original issue date of such Initial Notes (such period, the
“Distribution Compliance Period”), a beneficial interest in a Restricted Global Note representing Regulation S Notes
may be transferred to a Person who takes delivery in the form of an interest in a Restricted Global Note representing Rule 144A
Notes only if the transferor first delivers to the Trustee a written certificate (in the form provided in Exhibit 1 hereto) to the
effect that such transfer is being made to a Person who the transferor reasonably believes is purchasing for its own account or accounts
as to which it exercises sole investment discretion and that such Person is a QIB, in each case in a transaction meeting the requirements
of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.
After the expiration of the Distribution Compliance Period, such certification requirements shall not apply to such transfers of beneficial
interests in a Restricted Global Note representing Regulation S Notes.
Beneficial interests in a
Restricted Global Note representing Rule 144A Notes may be transferred to a Person who takes delivery in the form of an interest
in a Restricted Global Note representing Regulation S Notes, whether before or after the expiration of the Distribution Compliance
Period, only if the transferor first delivers to the Trustee a written certificate (in the form provided in Exhibit 1 hereto) to
the effect that such transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
(c) Certificated
Notes. Except as provided in Section 2.3 or 2.4, owners of beneficial interests in Restricted Global Notes shall not be entitled
to receive physical delivery of certificated Notes. Certificated Notes shall not be exchangeable for beneficial interests in Global Notes,
except with the consent of the Company.
2.2 Authentication.
The Trustee shall authenticate and deliver: (1) on the Initial Issuance Date, an aggregate principal amount of $450.0 million
8.250% Senior Notes due 2032 and (2) any Additional Notes for an original issue in an aggregate principal amount specified in the
written order of the Issuers pursuant to Section 2.02 of the Indenture, in each case upon a written order of the Issuers. Such order
shall specify the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated and to
whom the Notes shall be registered and delivered and, in the case of any issuance of Additional Notes pursuant to Section 2.13 of
the Indenture, shall certify that such issuance is in compliance with Section 4.09 of the Indenture.
2.3 Transfer
and Exchange.
(a) Transfer
and Exchange of Global Notes.
(i) The
transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depository, in accordance with this
Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor. A transferor
of a beneficial interest in a Global Note shall deliver to the Registrar a written order given in accordance with the Depository’s
procedures containing information regarding the participant account of the Depository to be credited with a beneficial interest in the
Global Note. The Registrar shall, in accordance with such instructions instruct the Depository to credit to the account of the Person
specified in such instructions a beneficial interest in the Global Note and to debit the account of the Person making the transfer the
beneficial interest in the Global Note being transferred.
(ii) Notwithstanding
any other provisions of this Appendix, a Global Note may not be transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to
a successor Depository or a nominee of such successor Depository.
(b) Legends.
(i) Except
as permitted by the following paragraph (ii), each Note certificate evidencing the Restricted Global Notes (and all Notes issued in exchange
therefor or in substitution thereof) shall bear a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION
DATE”) THAT IS IN THE CASE OF RULE 144A NOTES: ONE YEAR (OR SUCH SHORTER PERIOD THEN REQUIRED UNDER RULE 144 OR ITS SUCCESSOR RULE)
OR IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUERS
OR ANY AFFILIATE OF EITHER ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO AN ISSUER, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS’ AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO THIS CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
(ii) The
Company, acting in its discretion, may remove the legend set forth in paragraph (i) above from any Transfer Restricted Security
at any time on or after the Resale Restriction Termination Date applicable to such Transfer Restricted Security. Without limiting the
generality of the preceding sentence, the Company may effect such removal by issuing and delivering, in exchange for such Transfer Restricted
Security, a Note without such legend, registered to the same Holder and in an equal principal amount, and upon receipt of a written order
of the Company given at least three Business Days in advance of the proposed date of exchange specified therein (which shall be no earlier
than the Resale Restriction Termination Date), the Trustee shall authenticate and deliver such Note as directed in such order.
(c) Cancellation
or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for certificated
Notes, redeemed, purchased or canceled, such Global Note shall be returned to the Trustee for cancellation or retained and canceled by
the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for certificated Notes,
redeemed, purchased or canceled, or if any certificated Note is exchanged for such a beneficial interest, the principal amount of Notes
represented by such Global Note shall be reduced or increased, as appropriate, and an adjustment shall be made on the books and records
of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes
Custodian, to reflect such reduction or increase, as the case may be.
(d) Obligations
with Respect to Transfers and Exchanges of Notes.
(i) To
permit registrations of transfers and exchanges, the Issuers shall execute and the Trustee shall authenticate certificated Notes and
Global Notes at the Registrar’s request.
(ii) No
service charge shall be made for any registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to
cover any transfer tax, assessments or similar governmental charge payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon exchange or transfer pursuant to Sections 3.06, 4.10, 4.15 and 9.05 and of the
Indenture).
(iii) The
Registrar shall not be required to register the transfer of or exchange of any Note or portion of a Note selected for redemption, except
for the unredeemed portion of any Note being redeemed in part. Also, it need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed.
(iv) Prior
to the due presentation for registration of transfer of any Note, the Issuers, the Guarantors, the Trustee, the Paying Agent or the Registrar
may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment
of principal of, premium, if any, and interest on, such Note and for all other purposes whatsoever, whether or not such Note is overdue,
and none of the Issuers, the Guarantors, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
(v) All
Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
(e) No
Obligation of the Trustee.
(i) The
Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depository
or other Person with respect to the accuracy of the records of the Depository or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other
Person (other than the Depository) of any notice (including any notice of optional redemption) or the payment of any amount, under or
with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the
Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depository or its nominee in the
case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depository subject to
the applicable rules and procedures of the Depository. The Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its members, participants and any beneficial owners.
(ii) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under Applicable Law with respect to any transfer of any interest in any Note (including any transfers between
or among Depository participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
2.4 Certificated
Notes.
(a) A
Global Note deposited with the Depository or with the Trustee as custodian for the Depository pursuant to Section 2.1 shall be transferred
to the beneficial owners thereof in the form of certificated Notes in an aggregate principal amount equal to the principal amount of
such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.3 and (i) the Depository
notifies the Issuers that it is unwilling or unable to continue as Depository for such Global Note or if at any time such Depository
ceases to be a “clearing agency” registered under the Exchange Act and in either event a successor depositary is not appointed
by the Issuers within 90 days, or (ii) an Event of Default has occurred and is continuing and DTC notifies the Trustee of its decision
to exchange the Global Notes. Except as provided in the preceding sentence, and notwithstanding any contrary indication in Section 2.3(b),
beneficial interests in a Global Note may be exchanged for certificated Notes only with the consent of the Company, including if an affiliate
(as defined in Rule 144) of the Company acquires such interests.
(b) Any
Global Note that is transferable to the beneficial owners thereof pursuant to this Section shall be surrendered by the Depository
or the Notes Custodian to the Trustee located at its Corporate Trust Office to be so transferred, in whole or from time to time in part,
without charge, and, upon receipt of an Authentication Order, the Trustee shall authenticate and deliver, upon such transfer of each
portion of such Global Note, an equal aggregate principal amount of certificated Notes of authorized denominations. Any portion of a
Global Note transferred pursuant to this Section shall be executed, authenticated and delivered only in minimum denominations of
$2,000 principal amount and any integral multiple of $1,000 in excess of $2,000 and registered in such names as the Depository shall
direct. Any certificated Note delivered in exchange for an interest in a Global Note shall, except as otherwise provided by Section 2.3(b),
bear the restricted Notes legend set forth in Exhibit 1 hereto.
(c) Subject
to the provisions of Section 2.4(b), the Holder of a Global Note shall be entitled to grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
(d) In
the event of the occurrence of any of the circumstances specified in Section 2.4(a), the Issuers shall promptly make available to
the Trustee a reasonable supply of certificated Notes in definitive, fully registered form without interest coupons.
EXHIBIT 1 TO RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW
YORK, TO AN ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT
FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) THAT IS IN THE CASE OF RULE 144A NOTES: ONE YEAR (OR SUCH SHORTER PERIOD THEN REQUIRED UNDER RULE 144 OR ITS
SUCCESSOR RULE) OR IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUERS OR ANY AFFILIATE OF EITHER ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
AN ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG
AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS’ AND THE TRUSTEE’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO THIS CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
GLOBAL PARTNERS LP
GLP FINANCE CORP.
CUSIP No.
ISIN No.
8.250% Senior Note due 2032
Global Partners LP, a Delaware
limited partnership, and GLP Finance Corp., a Delaware corporation, jointly and severally promise to pay to __________, or registered
assigns, the principal sum of _________ Dollars ($_____)[, or such greater or lesser amount as may be indicated on the Schedule attached
hereto,]1on January 15, 2032.
Interest Payment Dates: January 15
and July 15.
Record Dates: January 1
and July 1.
Additional provisions of
this Note are set forth on the other side of this Note.
1 If this Note is a Global Note, add this provision.
|
GLOBAL
PARTNERS LP |
|
|
|
By: |
GLOBAL
GP LLC, |
|
|
its
General Partner |
|
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
Title: |
|
|
|
GLP
FINANCE CORP. |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
TRUSTEE’S
CERTIFICATE OF |
|
AUTHENTICATION |
|
|
|
Regions
Bank, |
|
as
Trustee, certifies that |
|
this
is one of the Notes |
|
referred
to in the Indenture. |
|
|
|
By |
|
|
|
Authorized
Signatory |
|
|
|
Dated: |
|
[FORM OF REVERSE SIDE OF NOTE]
8.250% Senior Note due 2032
Capitalized terms used herein
but not defined shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1. Interest.
Global Partners LP, a Delaware limited partnership (the “Company”), and GLP Finance Corp., a Delaware corporation (the “Finance
Corp.” and, together with the Company, the “Issuers”), jointly and severally promise to pay interest on the principal
amount of this Note at 8.250% per annum until maturity. The Issuers will pay interest semi-annually in arrears on January 15 and
July 15 of each year, commencing July 15, 2024, or if any such day is not a Business Day, on the next succeeding Business Day
(each an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from [the date of issuance]/[______]; provided that if there is no existing Default or Event of
Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date, except in the case of the original
issuance of Notes, in which case interest shall accrue from the date of authentication. The Issuers shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate
that is the rate then in effect, to the extent lawful; they shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand
at the same rate, to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method
of Payment. The Issuers will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the January 1 or July 1 next preceding the Interest Payment Date, even if such Notes are cancelled
after such record date and on or before such Interest Payment Date, except as provided in Section 2.11 of the Indenture with respect
to defaulted interest. Holders must surrender Notes to the Paying Agent to collect payments of principal and premium, if any, together
with accrued and unpaid interest due at maturity. The Notes will be payable as to principal, premium, if any, and interest at the office
or agency of the Issuers maintained for such purpose within the United States, or, at the option of the Issuers, payment of interest
may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire
transfer of immediately available funds to an account in the United States will be required with respect to any amounts due on all Global
Notes and all other Notes the Holders of at least $5.0 million in aggregate principal amount of which shall have provided wire transfer
instructions to the Issuers or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
3. Paying
Agent and Registrar. Initially, Regions Bank, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.
4. Indenture.
The Issuers issued the Notes under an Indenture dated as of January 18, 2024 (“Indenture”) among the Issuers, the Guarantors
and the Trustee. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. The
Notes are unsecured senior obligations of the Issuers limited to $450.0 million aggregate principal amount in the case of Notes
issued on the Initial Issuance Date (as defined in the Indenture). To the maximum extent permitted by law, in the case of any conflict
between the provisions of this Note and the Indenture, the provisions of the Indenture shall control.
5. Optional
Redemption.
(a) Except
as set forth in clauses (b), (c) and (d) of this Paragraph 5, the Issuers shall not have the option to redeem the Notes prior
to January 15, 2027. On or after January 15, 2027, the Issuers may on one or more occasions redeem all or part of the Notes
at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, on
the Notes to be redeemed to the applicable redemption date (subject to the right of Holders on the relevant record date to receive interest
due on an Interest Payment Date that is on or prior to the redemption date), if redeemed during the twelve-month period beginning on
January 15 of the years indicated below:
YEAR | |
PERCENTAGE | |
2027 | |
| 104.125 | % |
2028 | |
| 102.063 | % |
2029
and thereafter | |
| 100.000 | % |
(b) Notwithstanding
the provisions of subparagraph (a) of this Paragraph 5, at any time prior to January 15, 2027, the Issuers may on
any one or more occasions redeem up to 35% of the aggregate principal amount of Notes (including any Additional Notes) issued under this
Indenture at a redemption price of 108.250% of the principal amount, plus accrued and unpaid interest, if any, to the redemption date
(subject to the right of Holders on the relevant record date to receive interest due on an Interest Payment Date that is on or prior
to the redemption date), in an amount not greater than the net cash proceeds of one or more Equity Offerings, provided that:
(1) at
least 65% of the aggregate principal amount of Notes (including any Additional Notes) issued under this Indenture remains outstanding
immediately after the occurrence of such redemption (excluding any Notes held by the Company and its Subsidiaries); and
(2) the
redemption occurs within 180 days of the date of the closing of each such Equity Offering.
(c) Prior
to January 15, 2027, the Issuers may on any one or more occasions redeem all or part of the Notes at a redemption price equal to
the sum of:
(1) the
principal amount thereof, plus
(2) the
Make Whole Premium,
plus accrued and unpaid interest, if any, to
the redemption date (subject to the right of Holders on the relevant record date to receive interest due on an Interest Payment Date
that is on or prior to the redemption date).
(d) The
Notes may also be redeemed, as a whole, following certain Change of Control Offers or Alternate Offers, at the redemption price and subject
to the conditions set forth in Section 4.15(6) of the Indenture.
(e) Any
redemption pursuant to Section 3.07 of the Indenture shall be made pursuant to the provisions of Section 3.01 through Section 3.06
of the Indenture.
6. Mandatory
Redemption; Open Market Purchases.
Except as set forth in Paragraph
7 below, neither of the Issuers shall be required to make mandatory redemption or sinking fund payments with respect to the Notes or
to repurchase the Notes at the option of the Holders.
The Company may acquire notes
by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance
with applicable securities laws, so long as such acquisition does not otherwise violate the terms of the Indenture.
7. Repurchase
at Option of Holder.
(a) Within
30 days following the occurrence of a Change of Control Triggering Event, the Company may be required to make a cash tender offer (a
“Change of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess of
$2,000) of each Holder’s Notes in accordance with Section 4.15 of the Indenture.
(b) In
certain circumstances following an Asset Sale, the Company may be required to make an Asset Sale Offer to all Holders of Notes, to purchase
certain Notes, as described in Sections 4.10 and 3.09 of the Indenture.
(c) Holders of Notes
that are the subject of an offer to purchase will receive a Change of Control Offer or an Asset Sale Offer, as applicable, from the Company
prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder
to Elect Purchase” on the reverse of the Notes.
8. Notice
of Redemption. Notice of redemption will be sent at least 10 days but not more than 60 days (except as otherwise provided in the
Indenture if the notice is issued in connection with a Legal Defeasance, Covenant Defeasance or Discharge) before the redemption date
to each Holder whose Notes are to be redeemed at its registered address. If sent in the manner provided for in Section 3.03 of the
Indenture, the notice of optional redemption shall be conclusively presumed to have been given whether or not a Holder receives such
notice. Failure to give timely notice or any defect in the notice shall not affect the validity of the redemption. Notes in denominations
larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess of $2,000, unless all of the Notes held by
a Holder are to be redeemed. On and after the redemption date, interest will cease to accrue on Notes or portions thereof called for
redemption. Notices of redemption may be subject to one or more conditions.
9. Guarantees.
The payment by the Issuers of the principal of, and premium, if any, and interest on, the Notes is fully and unconditionally guaranteed
on a joint and several senior unsecured basis by each of the Guarantors to the extent set forth in the Indenture.
10. Denominations,
Transfer, Exchange. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000
in excess of $2,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Company may
require a Holder to pay any Taxes due on transfer or exchange. The Issuers need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, they need not
exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed.
11. Persons
Deemed Owners. The registered holder of a Note may be treated as its owner for all purposes.
12. Amendment,
Supplement and Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent
of the Holders of a majority in principal amount of the then outstanding Notes. In addition, without the consent of any Holder of Notes,
the Issuers, the Guarantors and the Trustee may amend or supplement the Indenture or the Notes for certain purposes described in the
Indenture.
13. Defaults
and Remedies. If any Event of Default occurs and is continuing, the Trustee, by notice to the Issuers, or the Holders of at least
25% in principal amount of the then outstanding Notes, by notice to the Issuers and the Trustee, may declare all the Notes to be due
and payable immediately, together with all accrued and unpaid interest, and premium, if any, thereon. Notwithstanding the preceding,
if an Event of Default specified in clause (i) or (j) of Section 6.01 of the Indenture occurs with respect to the Company,
Finance Corp., any of the Company’s Restricted Subsidiaries that is a Significant Subsidiary of the Company or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary of the Company, all outstanding Notes shall
become due and payable without further action or notice, together with all accrued and unpaid interest, and premium, if any, thereon.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power conferred on
it. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event
of Default relating to the payment of principal, interest or premium) if it determines that withholding notice is in their interest.
The Holders of a majority in principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default
or Event of Default in the payment of the principal of, or premium or interest on, the Notes.
14. Defeasance
and Discharge. The Notes are subject to defeasance and discharge upon the terms and conditions specified in the Indenture.
15. No
Recourse Against Others. None of the General Partner or any past, present or future director, officer, partner, employee, incorporator,
manager or unitholder or other owner of Capital Stock of the General Partner, the Issuers or any Guarantor, as such, shall have any liability
for any obligations of the Issuers or any Guarantor under the Notes, the Subsidiary Guarantees or the Indenture, or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance of the Notes.
16. Authentication.
This Note shall not be valid until authenticated by the manual signature of an authorized signatory of the Trustee or an authenticating
agent.
17. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
18. CUSIP
Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have
caused CUSIP numbers and corresponding ISIN numbers to be printed on the Notes and the Trustee may use CUSIP numbers and corresponding
ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers
placed thereon.
19. Governing
Law. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
20. Successors.
In the event a successor assumes all the obligations of an Issuer under the Notes and the Indenture, pursuant to the terms thereof, such
Issuer will be released from all such obligations.
The Company will furnish
to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Global Partners LP
P.O. Box 9161
800 South Street, Suite 500
Waltham, Massachusetts 02453
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill
in the form below:
I or we assign and transfer
this Note to
|
Print
or type assignee’s name, address and zip code) |
|
(Insert
assignee’s Soc. Sec. or Tax I.D. No.) |
and irrevocably appoint __________________ agent
to transfer this Note on the books of the Issuers. The agent may substitute another to act for him.
Date: |
|
|
Your Signature: |
|
|
|
|
Sign exactly as your name appears on the other
side of this Note. |
|
Signature Guarantee:
(Signature must be guaranteed)
Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
In connection with any transfer of any of the
Notes evidenced by this certificate occurring prior to one year after the later of the date of original issuance of such Notes (or the
date of any subsequent reopening of the Notes) and the last date, if any, on which such Notes were owned by an Issuer or any Affiliate
of an Issuer (or, in the case of Regulation S Notes, prior to the expiration of the Distribution Compliance Period), the undersigned
confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| (1) | ¨ |
to
an Issuer; or |
| | |
|
| (2) | ¨ |
pursuant
to an effective registration statement under the Securities Act of 1933; or |
| | |
|
| (3) | ¨ |
to
a person who the undersigned reasonably believes is a “qualified institutional buyer”
(as defined in Rule 144A under the Securities Act of 1933) that is purchasing for its
own account or for the account of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A, in each case pursuant to
and in compliance with Rule 144A under the Securities Act of 1933; or |
| (4) | ¨ |
outside
the United States in an offshore transaction within the meaning of Regulation S under the
Securities Act in compliance with Rule 904 under the Securities Act of 1933; or |
| | |
|
| (5) | ¨ |
pursuant
to another available exemption from the registration requirements of the Securities Act of
1933. |
Unless one of the boxes is checked, the Trustee
will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered holder thereof;
provided, however, that if box (4) or (5) is checked, the Trustee shall be entitled to require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that
such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities
Act of 1933, such as the exemption provided by Rule 144 under such Act.
TO BE COMPLETED BY PURCHASER IF (3) ABOVE
IS CHECKED.
The undersigned represents and warrants that it
is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933,
and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding
the Issuers and any Guarantors as the undersigned has requested pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated: |
|
|
|
|
|
|
Notice:To be executed by an executive officer |
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have
this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
¨ Section 4.10 |
¨ Section 4.15 |
|
|
If you want to elect to have
only part of this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount
(in minimum denomination of $2,000 or integral multiples of $1,000 in excess of $2,000) you elect to have purchased: $____________
Date: |
|
Your Signature: |
|
|
|
(Sign exactly as your name appears on the other side of this
Note) |
|
Soc.Sec. or Tax Identification No.: |
|
|
(Signature must be guaranteed) |
|
Signatures must be guaranteed
by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program”
as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.
[TO BE ATTACHED TO GLOBAL NOTE]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global
Note have been made:
Date |
|
Amount of
increase in
Principal
Amount of this
Global Note |
|
Amount of
decrease in
Principal
Amount of this
Global Note |
|
Principal
Amount of this
Global Note
following such
increase or
decrease |
|
Signature of
authorized
officer
of Trustee or
Notes Custodian |
|
|
|
|
|
|
|
|
|
ANNEX A
GLOBAL PARTNERS LP
GLP FINANCE CORP.
and
the Guarantors
named herein
______________________________________
8.250% SENIOR NOTES DUE 2032
______________________________________
________________________
FORM OF SUPPLEMENTAL INDENTURE
AND AMENDMENT -- SUBSIDIARY GUARANTEE
DATED AS OF ____________ __, ____
__________________________
REGIONS BANK
Trustee
______________________________________
This SUPPLEMENTAL INDENTURE,
dated as of ___________ __, ____, is among Global Partners LP, a Delaware limited partnership (the “Company”), GLP Finance
Corp., a Delaware corporation (“Finance Corp.” and, together with the Company, the “Issuers”), each of the parties
identified under the captions “Existing Guarantors” and “New Guarantors” on the signature page hereto (the
“Guarantors”) and Regions Bank, an Alabama state-chartered banking corporation, as Trustee.
RECITALS
WHEREAS, the Issuers, the
initial Guarantors and the Trustee entered into an Indenture, dated as of January 18, 2024 (the “Indenture”), pursuant
to which the Issuers have issued $450,000,000 in the aggregate principal amount of 8.250% Senior Notes due 2032 (the “Notes”);
WHEREAS, Section 9.01(g) of
the Indenture provides that the Issuers, the Guarantors and the Trustee may amend or supplement the Indenture in order to comply with
Section 4.13 or 10.03 thereof, without the consent of the Holders of the Notes; and
WHEREAS, all acts and things
prescribed by the Indenture, by law and by the Certificate of Incorporation and the Bylaws (or comparable constituent documents) of the
Issuers, of the Guarantors and of the Trustee necessary to make this Supplemental Indenture a valid instrument legally binding on the
Issuers, the Guarantors and the Trustee, in accordance with its terms, have been duly done and performed;
NOW, THEREFORE, to comply
with the provisions of the Indenture and in consideration of the above premises, the Issuers, the Guarantors and the Trustee covenant
and agree for the equal and proportionate benefit of the respective Holders of the Notes as follows:
ARTICLE 1
Section 1.01. This
Supplemental Indenture is supplemental to the Indenture and does and shall be deemed to form a part of, and shall be construed in connection
with and as part of, the Indenture for any and all purposes.
Section 1.02. This
Supplemental Indenture shall become effective immediately upon its execution and delivery by each of the Issuers, the Guarantors and the
Trustee.
ARTICLE 2
From this date, in accordance
with Section 4.13 or 10.03 and by executing this Supplemental Indenture, the Guarantors whose signatures appear below are subject
to the provisions of the Indenture to the extent provided for in Article 10 thereunder.
ARTICLE 3
Section 3.01. Except
as specifically modified herein, the Indenture and the Notes are in all respects ratified and confirmed (mutatis mutandis) and
shall remain in full force and effect in accordance with their terms with all capitalized terms used herein without definition having
the same respective meanings ascribed to them as in the Indenture.
Section 3.02. No
duties, responsibilities or liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this Supplemental
Indenture. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Issuers. This Supplemental
Indenture is executed and accepted by the Trustee subject to all the terms and conditions set forth in the Indenture with the same force
and effect as if those terms and conditions were repeated at length herein and made applicable to the Trustee with respect hereto.
Section 3.03. THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.04. The
parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of such executed
copies together shall represent the same agreement.
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental Indenture to be duly executed, all as of the date first written above.
|
By:
Global GP LLC, its General Partner |
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Global Partners (NYSE:GLP-B)
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Global Partners (NYSE:GLP-B)
과거 데이터 주식 차트
부터 5월(5) 2023 으로 5월(5) 2024