PBF 8-K
PBF Energy Inc. (PBF)
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
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)) |
Title of each class |
Trading Symbol |
Name of each exchange on which registered | ||
Item 1.01. Entry into a Material Definitive Agreement.
0% Exchangeable Senior Notes due 2032
On September 17, 2026, PBF Holding Company LLC (“PBF Holding”), a subsidiary of PBF Energy Company LLC (“PBF LLC”), in turn a subsidiary of PBF Energy Inc. (“PBF Energy”) entered into an Indenture (the “Indenture”) among PBF Holding and PBF Holding’s wholly-owned subsidiary, PBF Finance Corporation (together with PBF Holding, the “Issuers”), PBF Energy, the Guarantors named on the signature pages thereto, U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), under which the Issuers issued $550.0 million in aggregate principal amount of 0% Exchangeable Senior Notes due 2032 (the “Notes”), which includes $50,000,000 aggregate principal amount of Notes issued pursuant to the full exercise by the initial purchasers (the “Initial Purchasers”) of their option granted under the purchase agreement relating thereto. The Initial Purchasers in the offering purchased the Notes pursuant to a private placement transaction conducted under Rule 144A. The Issuers received net proceeds of approximately $533.6 million from the offering after deducting the initial purchasers’ discount and estimated offering expenses. The Company intends to use the net proceeds to fund (i) the costs of entering into the capped call transactions described below, (ii) the redemption in full of the Issuers’ outstanding 7.875% senior unsecured notes due 2030 (the “2030 7.875% Senior Notes”), and for general corporate purposes.
Initially, the Notes are guaranteed by PBF Services Company LLC, PBF Investments LLC, Delaware City Refining Company LLC, PBF Power Marketing LLC, Paulsboro Refining Company LLC, Toledo Refining Company LLC, PBF International Inc., Chalmette Refining, L.L.C., Torrance Refining Company LLC, PBF Energy Western Region LLC and Martinez Refining Company LLC (each, a “Guarantor”), which also guarantee the Issuers’ outstanding 7.875% Senior Notes (to the extent that such 2030 7.875% Senior Notes remain outstanding following their intended redemption) 2030 Notes Redemption, the 9.875% senior unsecured notes due 2030 and the 7.250% senior unsecured notes due 2034 (collectively, the “existing senior notes”). Following the issue date, the Notes will be guaranteed by each of the Issuers’ subsidiaries that guarantees the Issuers’ existing senior notes or other capital markets indebtedness. PBF Energy and its subsidiaries (other than the Issuers and certain of their respective subsidiaries) will not guarantee or be obligors under the Notes.
The Notes and the guarantees will be senior unsecured obligations of the Issuers and the guarantors, and will rank equal in right of payment with all of the Issuers’ and the guarantors’ existing and future senior indebtedness, including the Issuers’ asset-based revolving credit facility (as amended, supplemented or restated from time to time, the “Revolving Credit Facility”) and the Issuers’ existing senior notes. The Notes and the guarantees will rank senior in right of payment to the Issuers’ and the guarantors’ existing and future indebtedness that is expressly subordinated in right of payment thereto. The Notes and the guarantees will be effectively subordinated to any of the Issuers’ and the guarantors’ existing or future secured indebtedness (including the Revolving Credit Facility) to the extent of the value of the collateral securing such indebtedness. The Notes and the guarantees will be structurally subordinated to any existing or future indebtedness and other obligations of the Issuers’ non-guarantor subsidiaries.
The Notes will not bear regular interest, and the principal amount of the Notes will not accrete. The Issuers will pay special interest, if any, (i) at their election, as the sole remedy relating to the failure to comply with certain SEC reporting obligations and (ii) in the event of PBF Energy’s failure to satisfy certain of its obligations under the Registration Rights Agreement (as defined below), at a rate per annum not exceeding 0.50%. The Notes will mature on January 15, 2032, unless earlier exchanged, repurchased or redeemed.
Holders may exchange all or a portion of their Notes at their option at any time prior to the close of business on the business day immediately preceding October 15, 2031, only under the following circumstances: (1) for any fiscal quarter commencing after the fiscal quarter ending on September 30, 2026, if the last reported sale price of Class A common stock, par value $0.001 per share (“Common Stock”) of PBF Energy for at least 5 trading days (whether or not consecutive) during the first 20 trading days of such fiscal quarter exceeds 150% of the exchange price on each applicable trading day, then a holder of Notes may surrender all or any portion of its Notes for exchange at any time at its option during the 30 trading day period beginning on, and including, the 21st trading day of such quarter; (2) during the five business day period after any ten consecutive trading day period (the “measurement period”) in which the trading price (as defined herein) per $1,000 principal amount of Notes for each trading day of the measurement period was less than 98% of the product of the last reported sale price per share of Common Stock and the exchange rate on each such trading day; (3) if the Issuers call the Notes for redemption, but only with respect to the Notes called for redemption; or (4) upon the occurrence of specified corporate events as set forth in the Indenture. On or after October 15, 2031, holders may exchange all or a portion of their Notes at any time prior to the close of business on the second scheduled trading day immediately preceding the maturity date. Upon exchange of the Notes, the Issuers will pay cash up to the aggregate principal amount of the Notes to be exchanged and pay or deliver, as the case may be, cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Issuers’ election, in respect of the remainder, if any, of the Issuers’ exchange obligations in excess of the aggregate principal amount of Notes being exchanged, as described in the Indenture.
The exchange rate will initially be 10.3306 shares of Common Stock per $1,000 principal amount of Notes (equivalent to an initial exchange price of approximately $96.80 per share of Common Stock). The exchange rate will be subject to adjustment upon the occurrence of certain events. In addition, following certain corporate events that occur prior to the maturity date or the Issuers’ delivery of a notice of redemption, the Issuers will increase, in certain circumstances, the exchange rate for a holder who elects to exchange its Notes in connection with such a corporate event or a notice of redemption, as the case may be. The issuers may not redeem the Notes prior to January 20, 2030, except in the event of a cleanup redemption as described below. On or after January 20, 2030, and prior to the 31st scheduled trading day immediately preceding the maturity date, the Notes will be redeemable in whole or in part (subject to the partial redemption limitation, as set forth in the Indenture), at the Issuers’ option, upon the Issuers’ giving of a notice of redemption, at a cash redemption price equal to the principal amount of the Notes to be redeemed, plus accrued and unpaid special interest, if any, to, but not including, the redemption date, if the last reported sale price per share of Common Stock has been at least 130% of the exchange price then in effect for at least 20 trading days (whether or not consecutive), including the trading day immediately preceding the date on which the Issuers provide notice of redemption, during any 30 consecutive trading day period ending on, and including, the trading
day immediately preceding the date on which the Issuers provide notice of redemption, as set forth in the Indenture. The issuers may also redeem the Notes, in whole but not in part, at any time prior to the 31st scheduled trading day immediately preceding the maturity date, if the aggregate principal amount of Notes that remains outstanding at such time is less than 10% of the aggregate principal amount of Notes initially issued under the indenture (including any Notes issued pursuant to the exercise of the initial purchasers’ option), as set forth in the Indenture (a “cleanup redemption”). In the case of any redemption, the redemption price will be equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid special interest, if any, to, but excluding, the redemption date. No sinking fund is provided for the Notes.
If certain corporate events that constitute a “Fundamental Change” (as defined in the Indenture) occur, holders may require the Issuers to repurchase for cash all or part of their Notes at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid special interest to, but not including, the fundamental change repurchase date. The definition of Fundamental Change includes certain business combination transactions involving the Issuers or the Company and certain de-listing events with respect to the Common Stock.
The Indenture contains customary terms, events of default and covenants for an issuer of non-investment grade convertible or exchangeable debt securities.
The foregoing description is not complete and is subject to and qualified in its entirety by reference to the full text of the Indenture and the form of Notes, which are filed as Exhibits 4.1 and 4.2 respectively, to this Current Report on Form 8-K and incorporated herein by reference.
Registration Rights Agreement
In connection with the issuance and sale of the Notes, on September 17, 2026, the Issuers and PBF Energy also entered into a registration rights agreement (the “Registration Rights Agreement”) with the initial purchasers under which PBF Energy agreed for the benefit of the holders of the Notes and the shares of Common Stock, if any, issuable or deliverable upon exchange of the Notes that it will, at its cost:
| • | file a shelf registration statement (which shall be an automatic shelf registration statement if PBF Energy is then a well-known seasoned issuer (“WKSI”)) or a resale prospectus supplement to an effective shelf registration statement with the SEC, covering resales of the shares of Common Stock, if any, issuable or deliverable upon exchange of the Notes, on or prior to December 31, 2026, and, if PBF Energy is not a WKSI, use commercially reasonable efforts to cause such shelf registration statement to become effective after filing, but in no event later than 90 days after the earlier of the date of the registration statement is filed with the SEC and the filing deadline; and |
| • | use commercially reasonable efforts to keep the shelf registration statement or resale prospectus effective and in compliance with the provisions of the Securities Act until the earlier to occur of (1) the 30th trading day immediately following the maturity date (subject to extension for any suspension of the effectiveness of the registration during such 30-trading day period immediately following the maturity date) and (2) the date on which there are no longer outstanding any Notes or shares of Common Stock issued upon exchange thereof that would be “restricted” securities (within the meaning of Rule 144 under the Securities Act). |
If the Issuers do not fulfill certain of their obligations under the Registration Rights Agreement with respect to the Notes, the Issuers will be required to pay special interest to holders of the Notes, at a rate of 0.25% per annum to and including the 90th day following such registration default, and 0.50% per annum thereafter.
The foregoing description is not complete and is subject to and qualified in its entirety by reference to the full text of the Registration Rights Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Capped Call Transactions
In connection with the pricing of the Notes and the exercise by the initial purchasers of their option to purchase additional Notes, the Issuers and PBF Energy have entered into privately negotiated capped call transactions with certain of the initial purchasers of the Notes or their respective affiliates or certain other financial institutions (the “option counterparties”). The capped call transactions cover, subject to anti-dilution adjustments substantially similar to those applicable to the Notes, the number of shares of Common Stock initially underlying the Notes. The capped call transactions are expected generally to reduce the potential dilution to the Common Stock upon any exchange of Notes and/or offset any cash payments the Issuers are required to make in excess of the principal amount of exchanged Notes, as the case may be, with such reduction and/or offset subject to a cap.
The cap price of the capped call transactions is initially $123.20 per share, which represents a premium of 75% over the last reported sale price of Common Stock of $70.40 per share on September 14, 2026, and is subject to certain adjustments under the terms of the capped call transactions.
The Issuers have been advised that, in connection with establishing their initial hedges of the capped call transactions, the option counterparties or their respective affiliates expect to enter into various derivative transactions with respect to the Common Stock and/or purchase shares of the Common Stock or other securities of PBF Energy in secondary market transactions concurrently with, or shortly after, the pricing of the Notes, including with, or from, as the case may be, certain investors in the Notes. This activity could increase (or reduce the size of any decrease in) the market price of the Common Stock or the Notes at that time. In addition, the Issuers and PBF Energy expect that the option counterparties or their respective affiliates may modify their hedge positions by entering into or unwinding various derivatives with respect to the Common Stock and/or purchasing or selling the Common Stock or other securities of PBF Energy or the Issuers in secondary market transactions following the pricing of the Notes and prior to the maturity of the Notes (and are likely to do so (x) during any observation period related to an exchange of Notes, following any redemption of Notes by the Issuers or following any repurchase of Notes by the Issuers in connection with any fundamental change and (y) following any repurchase of the Notes by the Issuers other than in connection with any such redemption or any fundamental change if the Issuers elect to unwind a corresponding portion of the capped call transactions in connection
with such repurchase). This activity could also cause or avoid an increase or a decrease in the market price of the Common Stock or the Notes, which could affect the ability of holders to exchange the Notes, and, to the extent the activity occurs during any observation period related to an exchange of Notes, it could affect the number of shares of the Common Stock, if any, and value of the consideration that holders will receive upon exchange of the Notes.
The capped call transactions are separate transactions (in each case entered into with a separate option counterparty), are not part of the terms of the Notes and will not change the holders’ rights under the Notes. Noteholders will not have any rights with respect to the capped call transactions.
The foregoing description is not complete and is subject to and qualified in its entirety by reference to the full text of the form of capped call confirmation relating to the capped call transactions, which is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of the Registrant.
The information required by Item 2.03 relating to the Notes and the Indenture is contained in Item 1.01 of this Current Report on Form 8-K above and is incorporated by reference herein.
Item 3.02. Unregistered Sales of Equity Securities.
The disclosure set forth in Item 1.01 above is incorporated by reference into this Item 3.02. The Notes were issued to the initial purchasers in reliance upon Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), in transactions not involving any public offering. The Notes were resold by the initial purchasers to persons whom the initial purchasers reasonably believe are “qualified institutional buyers,” as defined in, and in accordance with, Rule 144A under the Securities Act. Any shares of Common Stock that may be issued upon exchange of the Notes will be issued in reliance upon Section 4(a)(2) of the Securities Act. A maximum of 7,812,475 shares of Common Stock may be issued upon exchange of the Notes, based on the initial maximum exchange rate of 14.2045 shares of Common Stock per $1,000 principal amount of Notes, which is subject to customary anti-dilution adjustment provisions.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. | Description | |
| 4.1 | Indenture dated as of September 17, 2026, among the Issuers, PBF Energy and the Trustee | |
| 4.2 | Form of 0% Exchangeable Senior Note due 2032 (included in Exhibit 4.1) | |
| 10.1 | Registration Rights Agreement dated September 17, 2026, among the Issuers, PBF Energy and the Representative named therein | |
| 10.2 | Form of Capped Call Transaction Confirmation | |
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL). | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrants have duly caused this report to be signed on their behalf by the undersigned hereunto duly authorized.
| Date: | September 17, 2026 | PBF Energy Inc. | ||||
| (Registrant) | ||||||
| By: | /s/ Trecia M. Canty | |||||
| Name: | Trecia M. Canty | |||||
| Title: | Senior Vice President, General Counsel and Secretary | |||||
| Date: | September 17, 2026 | PBF Holding Company LLC | ||||
| (Registrant) | ||||||
| By: | /s/ Trecia M. Canty | |||||
| Name: | Trecia M. Canty | |||||
| Title: | Senior Vice President, General Counsel and Secretary | |||||
Exhibit 4.1
Execution Version
INDENTURE
Dated as of September 17, 2026
Among
PBF HOLDING COMPANY LLC,
PBF FINANCE CORPORATION, each as an Issuer,
THE GUARANTORS PARTY HERETO FROM TIME TO TIME,
PBF ENERGY INC.
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
0% Exchangeable Senior Notes due 2032
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE 1 | ||||||
| DEFINITIONS | ||||||
| Section 1.01 |
Definitions | 1 | ||||
| Section 1.02 |
References to Interest | 15 | ||||
| ARTICLE 2 | ||||||
| ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES | ||||||
| Section 2.01 |
Designation and Amount | 16 | ||||
| Section 2.02 |
Form of Notes | 16 | ||||
| Section 2.03 |
Date and Denomination of Notes; No Regular Interest; Payments of Interest and Defaulted Amounts | 17 | ||||
| Section 2.04 |
Execution, Authentication and Delivery of Notes | 18 | ||||
| Section 2.05 |
Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary | 19 | ||||
| Section 2.06 |
Mutilated, Destroyed, Lost or Stolen Notes | 24 | ||||
| Section 2.07 |
Temporary Notes | 25 | ||||
| Section 2.08 |
Cancellation of Notes Paid, Exchanged, Etc. | 25 | ||||
| Section 2.09 |
CUSIP Numbers | 26 | ||||
| Section 2.10 |
Additional Notes; Purchases | 26 | ||||
| ARTICLE 3 | ||||||
| SATISFACTION AND DISCHARGE | ||||||
| Section 3.01 |
Satisfaction and Discharge | 26 | ||||
| ARTICLE 4 | ||||||
| PARTICULAR COVENANTS OF THE ISSUERS AND PBF ENERGY | ||||||
| Section 4.01 |
Payment of Principal, Settlement Amounts and Interest | 27 | ||||
| Section 4.02 |
Maintenance of Office or Agency | 28 | ||||
| Section 4.03 |
Appointments to Fill Vacancies in Trustee’s Office | 28 | ||||
| Section 4.04 |
Provisions as to Paying Agent | 28 | ||||
| Section 4.05 |
[Reserved] | 29 | ||||
| Section 4.06 |
Rule 144A Information Requirement; Reporting; and Registration Default Special Interest | 29 | ||||
| Section 4.07 |
No Rights as Stockholders or Unitholders | 31 | ||||
| Section 4.08 |
Limitations on Activities of PBF Finance | 31 | ||||
| Section 4.09 |
Compliance Certificate; Statements as to Defaults | 31 | ||||
| ARTICLE 5 | ||||||
| GUARANTEES | ||||||
| Section 5.01 |
Guarantees | 32 | ||||
| Section 5.02 |
Limitation on Guarantor Liability | 33 | ||||
| Section 5.03 |
Execution and Delivery | 33 | ||||
| Section 5.04 |
Subrogation | 34 | ||||
i
| Section 5.05 |
Benefits Acknowledged | 34 | ||||
| Section 5.06 |
Release of Guarantees | 34 | ||||
| Section 5.07 |
Future Guarantors | 35 | ||||
| ARTICLE 6 | ||||||
| DEFAULTS AND REMEDIES | ||||||
| Section 6.01 |
Events of Default | 35 | ||||
| Section 6.02 |
Acceleration | 37 | ||||
| Section 6.03 |
Special Interest for Reporting Event of Default | 38 | ||||
| Section 6.04 |
Payments of Notes on Default; Suit Therefor | 39 | ||||
| Section 6.05 |
Application of Monies Collected by Trustee | 41 | ||||
| Section 6.06 |
Proceedings by Holders | 41 | ||||
| Section 6.07 |
Proceedings by Trustee | 42 | ||||
| Section 6.08 |
Remedies Cumulative and Continuing | 42 | ||||
| Section 6.09 |
Direction of Proceedings and Waiver of Defaults by Majority of Holders | 42 | ||||
| Section 6.10 |
Notice of Defaults | 43 | ||||
| Section 6.11 |
Undertaking to Pay Costs | 43 | ||||
| ARTICLE 7 | ||||||
| CONCERNING THE TRUSTEE | ||||||
| Section 7.01 |
Duties and Responsibilities of Trustee | 44 | ||||
| Section 7.02 |
Certain Rights of the Trustee | 45 | ||||
| Section 7.03 |
No Responsibility for Recitals, Etc. | 47 | ||||
| Section 7.04 |
Trustee, Paying Agents, Exchange Agents or Note Registrar May Own Notes | 47 | ||||
| Section 7.05 |
Monies To Be Held in Trust | 48 | ||||
| Section 7.06 |
Compensation and Expenses of Trustee | 48 | ||||
| Section 7.07 |
Officer’s Certificate as Evidence | 49 | ||||
| Section 7.08 |
Eligibility of Trustee | 49 | ||||
| Section 7.09 |
Resignation or Removal of Trustee | 49 | ||||
| Section 7.10 |
Acceptance by Successor Trustee | 50 | ||||
| Section 7.11 |
Succession by Merger, Etc. | 51 | ||||
| Section 7.12 |
Trustee’s Application for Instructions from the Issuers | 51 | ||||
| Section 7.13 |
Conflicting Interests of Trustee | 51 | ||||
| Section 7.14 |
Limitation on Trustee’s Liability | 52 | ||||
| ARTICLE 8 | ||||||
| CONCERNING THE HOLDERS | ||||||
| Section 8.01 |
Action by Holders | 52 | ||||
| Section 8.02 |
Proof of Execution by Holders | 52 | ||||
| Section 8.03 |
Who Are Deemed Absolute Owners | 52 | ||||
| Section 8.04 |
Issuers-Owned Notes Disregarded | 53 | ||||
| Section 8.05 |
Revocation of Consents; Future Holders Bound | 53 | ||||
| ARTICLE 9 | ||||||
| [RESERVED] | ||||||
ii
| ARTICLE 10 | ||||||
| SUPPLEMENTAL INDENTURES | ||||||
| Section 10.01 |
Supplemental Indentures Without Consent of Holders | 53 | ||||
| Section 10.02 |
Supplemental Indentures with Consent of Holders | 54 | ||||
| Section 10.03 |
Effect of Amendment, Supplement and Waiver | 56 | ||||
| Section 10.04 |
Notation on Notes | 56 | ||||
| Section 10.05 |
Evidence of Compliance of Amendment, Supplement or Waiver To Be Furnished To Trustee | 56 | ||||
| Section 10.06 |
Restrictions Regarding Canada | 56 | ||||
| ARTICLE 11 | ||||||
| CONSOLIDATION, MERGER AND SALE | ||||||
| Section 11.01 |
PBF Energy May Consolidate, Etc. on Certain Terms | 57 | ||||
| Section 11.02 |
PBF Holding May Consolidate, Etc. on Certain Terms | 57 | ||||
| Section 11.03 |
PBF Finance May Consolidate, Etc. on Certain Terms | 58 | ||||
| Section 11.04 |
Guarantors May Consolidate, Etc. on Certain Terms | 58 | ||||
| Section 11.05 |
Opinion of Counsel and Officer’s Certificate To Be Given to Trustee | 59 | ||||
| ARTICLE 12 | ||||||
| IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS | ||||||
| Section 12.01 |
Indenture and Notes Solely Issuers’ and Guarantors’ Obligations | 60 | ||||
| ARTICLE 13 | ||||||
| [INTENTIONALLY OMITTED] | ||||||
| ARTICLE 14 | ||||||
| EXCHANGE OF NOTES | ||||||
| Section 14.01 |
Exchange Privilege | 60 | ||||
| Section 14.02 |
Exchange Procedure; Settlement Upon Exchange | 63 | ||||
| Section 14.03 |
Increase in Exchange Rate Upon Exchange in Connection with a Make-Whole Fundamental Change | 69 | ||||
| Section 14.04 |
Adjustment of Exchange Rate | 71 | ||||
| Section 14.05 |
Adjustments of Prices | 80 | ||||
| Section 14.06 |
Shares To Be Fully Reserved | 80 | ||||
| Section 14.07 |
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock | 81 | ||||
| Section 14.08 |
Certain Covenants | 83 | ||||
| Section 14.09 |
Responsibility of Trustee | 83 | ||||
| Section 14.10 |
[Reserved] | 84 | ||||
| Section 14.11 |
Stockholder Rights Plans | 84 | ||||
| ARTICLE 15 | ||||||
| REPURCHASE OF NOTES AT OPTION OF HOLDERS | ||||||
| Section 15.01 |
Intentionally Omitted | 84 | ||||
| Section 15.02 |
Repurchase at Option of Holders Upon a Fundamental Change | 84 | ||||
iii
| Section 15.03 |
Withdrawal of Fundamental Change Repurchase Notice | 87 | ||||
| Section 15.04 |
Deposit of Fundamental Change Repurchase Price | 88 | ||||
| Section 15.05 |
Covenant to Comply with Applicable Laws Upon Repurchase of Notes | 88 | ||||
| ARTICLE 16 | ||||||
| REDEMPTION | ||||||
| Section 16.01 |
Right of the Issuers to Redeem the Notes | 89 | ||||
| Section 16.02 |
Notice of Redemption | 90 | ||||
| Section 16.03 |
Payment of Notes Called for Redemption | 91 | ||||
| Section 16.04 |
Selection, Exchange and Transfer of Notes to be Redeemed in Part | 92 | ||||
| Section 16.05 |
Restrictions on Redemption | 92 | ||||
| Section 16.06 |
Increased Exchange Rate Applicable to Certain Notes Called for Redemption Surrendered for Exchange in Connection with a Redemption | 92 | ||||
| ARTICLE 17 | ||||||
| MISCELLANEOUS PROVISIONS | ||||||
| Section 17.01 |
Provisions Binding on Issuers’ and PBF Energy’s Successors | 93 | ||||
| Section 17.02 |
Official Acts by Successor Entity | 93 | ||||
| Section 17.03 |
Addresses for Notices, Etc. | 93 | ||||
| Section 17.04 |
Governing Law | 94 | ||||
| Section 17.05 |
[Reserved] | 94 | ||||
| Section 17.06 |
Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee | 95 | ||||
| Section 17.07 |
Legal Holidays | 95 | ||||
| Section 17.08 |
No Security Interest Created | 95 | ||||
| Section 17.09 |
Benefits of Indenture | 95 | ||||
| Section 17.10 |
Table of Contents, Headings, Etc. | 95 | ||||
| Section 17.11 |
Authenticating Agent | 96 | ||||
| Section 17.12 |
Execution in Counterparts | 97 | ||||
| Section 17.13 |
Severability | 97 | ||||
| Section 17.14 |
Waiver of Jury Trial; Submission of Jurisdiction | 97 | ||||
| Section 17.15 |
Force Majeure | 97 | ||||
| Section 17.16 |
Calculations | 98 | ||||
| Section 17.17 |
U.S.A. Patriot Act | 98 | ||||
| EXHIBIT | ||||||
| Exhibit A |
Form of Note | A-1 | ||||
iv
INDENTURE dated as of September 17, 2026 among PBF Holding Company LLC, a Delaware limited liability company, PBF Finance Corporation, a Delaware corporation and wholly owned subsidiary of PBF Holding Company LLC, in each case as an issuer (each, an “Issuer” and together, the “Issuers”, as more fully set forth in Section 1.01), the guarantors party hereto from time to time, PBF Energy Inc., a Delaware corporation (“PBF Energy”), and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”, as more fully set forth in Section 1.01).
W I T N E S S E T H:
WHEREAS, the Issuers have duly authorized the issuance of 0% Exchangeable Senior Notes due 2032 (the “Notes”), initially in an aggregate principal amount of $550,000,000, and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Issuers have duly authorized the execution and delivery of this Indenture; and
WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the Form of Notice of Exchange and the Form of Fundamental Change Repurchase Notice to be borne by the Notes are to be substantially in the forms hereinafter provided; and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Issuers and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as provided in this Indenture, the valid, binding and legal obligations of the Issuers, and this Indenture the valid, binding and legal obligation of the Issuers, PBF Energy and the guarantors party hereto from time to time, have been done and performed, and the execution of this Indenture and the issuance hereunder of the Notes has in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the Holders thereof, the Issuers, PBF Energy and the Guarantors covenant and agree with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural as well as the singular. The word “will” shall be construed to have the same meaning and effect as the word “shall.” Any of the Issuers, the Guarantors or PBF Energy taking any action (including, without limitation, executing any agreements, Notes or documents) shall be construed as such party acting through its respective authorized officers.
1
“Additional Shares” shall have the meaning specified in Section 14.03(a).
“Adequate Cash Exchange Provisions” shall have the meaning specified in Section 15.02(e).
“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 the purposes of this definition, “control,” when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Law” shall have the meaning specified in Section 17.17.
“Applicable Procedures” means, with respect to a Depositary, as to any matter at any time, the policies and procedures of such Depositary, if any, that are applicable to such matter at such time.
“Authorized Denomination” means, with respect to a Note, a minimum principal amount thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof.
“Authorized Officers” shall have the meaning specified in Section 17.03.
“Bankruptcy Law” means Title 11, U.S. Code, as amended, or any similar federal, state or foreign law for the relief of debtors.
“Bid Solicitation Agent” means the Person appointed by the Issuers to solicit bids for the Trading Price of the Notes in accordance with Section 14.01(b)(i). The Issuers shall initially act as the Bid Solicitation Agent.
“Board of Directors” means with respect to a corporation, the board of directors of the corporation, and with respect to any other Person, the board or committee of such Person, or board of directors of the general partner or general manager of such Person serving a similar function.
“Board Resolution” means a copy of a resolution certified by an officer, which may include the Secretary or an Assistant Secretary, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.
“Capital Markets Indebtedness” means any indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (a) a public offering registered under the Securities Act or (b) a private placement to institutional investors that is resold in accordance with Rule 144A or Regulation S of the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the SEC. The term “Capital Markets Indebtedness” does not include indebtedness issued to institutional investors in a direct placement that is not resold by an intermediary (it being understood that, without limiting the foregoing, a financing that is distributed to not more
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than ten persons (provided that multiple managed accounts and affiliates of any such persons shall be treated as one person for the purposes of this definition) will be deemed not to be so underwritten or resold), or any indebtedness under the Issuers’ credit facilities as of the Issue Date (or similar credit facilities incurred from time to time), capitalized lease obligations, recourse transfers of any financial asset or any other type of indebtedness incurred in a manner not customarily viewed as a “securities offering.”
“Capital Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity; provided that debt securities that are convertible into or exchangeable for Capital Stock shall not constitute Capital Stock prior to their conversion or exchange, as the case may be.
“Cash Settlement” shall have the meaning provided in Section 14.02(a).
“Certificated Notes” means permanent certificated Notes in registered form issued in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof.
“Clause A Distribution” shall have the meaning specified in Section 14.04(c).
“Clause B Distribution” shall have the meaning specified in Section 14.04(c).
“Clause C Distribution” shall have the meaning specified in Section 14.04(c).
“Cleanup Redemption” shall have the meaning specified in Section 16.01(c).
“Close of Business” means 5:00 p.m. (New York City time).
“Combination Settlement” shall have the meaning provided in Section 14.02(a).
“Commission” means the U.S. Securities and Exchange Commission.
“Common Equity” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.
“Common Stock” means the Class A common stock, $0.001 par value per share, of PBF Energy, subject to Section 14.07.
“Company Order” means a written order of the Issuers, signed by an Officer of any Issuer.
“Corporate Trust Office” means the corporate trust office of the Trustee located at 633 West 5th Street, Los Angeles, CA (Attention: Bradley E. Scarbrough), or such other office, designated by the Trustee by written notice to the Issuers, at which at any particular time its corporate trust business relating to this Indenture shall be administered.
“Custodian” means the Trustee, as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity thereto.
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“Daily Exchange Value” means, for each of the 30 consecutive VWAP Trading Days during the relevant Observation Period, 1/30th of the product of (i) the Exchange Rate on such VWAP Trading Day and (ii) the Daily VWAP for such VWAP Trading Day.
“Daily Measurement Value” shall have the meaning specified in the definition of “Daily Settlement Amount.”
“Daily Settlement Amount,” for each of the 30 consecutive VWAP Trading Days during the relevant Observation Period, shall consist of:
cash in an amount equal to the lesser of (i) the Specified Dollar Amount, if any, divided by 30 (such quotient, the “Daily Measurement Value”) and (ii) the Daily Exchange Value for such VWAP Trading Day; and
if the Daily Exchange Value on such VWAP Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i) the difference between the Daily Exchange Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for such VWAP Trading Day.
“Daily VWAP” means, for each of the 30 consecutive VWAP Trading Days during the relevant Observation Period, the per share volume-weighted average price per share of the Common Stock (as displayed under the heading “Bloomberg VWAP” on Bloomberg page “PBF <EQUITY> AQR” (or, if such page is not available, its equivalent successor page) at any time that the Relevant Stock Exchange is the New York Stock Exchange) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such VWAP Trading Day of the Relevant Stock Exchange as reasonably determined by the Issuers (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such VWAP Trading Day determined, using a volume-weighted average method, by a U.S. nationally recognized independent investment banking firm retained for this purpose by the Issuers). The “Daily VWAP” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
“Dividend Threshold” shall have the meaning set forth in Section 14.04(d).
“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.
“Default Interest” shall have the meaning specified in Section 2.03(c).
“Defaulted Amounts” means any amounts on any Note (including, without limitation, the Redemption Price, Fundamental Change Repurchase Price, cash due upon exchange, principal and Special Interest, if any) that are payable but are not punctually paid or duly provided for.
“Depositary” means, with respect to each Global Note, the Person specified in Section 2.05(b) as the Depositary with respect to such Notes, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.
“Designated Exchange” means The New York Stock Exchange, Nasdaq Global Select Market or the Nasdaq Global Market (or any of their respective successors).
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“Designated Financial Institution” shall have the meaning specified in Section 14.02(j).
“Distributed Property” shall have the meaning specified in Section 14.04(c).
“effective date” means the first date on which shares of Common Stock trade on the Relevant Stock Exchange, regular way, reflecting the relevant share split or share combination, as applicable.
“Effective Date” shall have the meaning set forth in Section 14.03(c).
“Electronic Means” means the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Event of Default” shall have the meaning specified in Section 6.01.
“Ex-Dividend Date” means the first date on which shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from PBF Energy or, if applicable, from the seller of the Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Agent” shall have the meaning specified in Section 4.02.
“Exchange Date” shall have the meaning specified in Section 14.02(c).
“Exchange Election” shall have the meaning specified in Section 14.02(j).
“Exchange Obligation” shall have the meaning specified in Section 14.01(a).
“Exchange Price” means as of any date, $1,000, divided by the Exchange Rate as of such date.
“Exchange Rate” shall have the meaning specified in Section 14.01(a).
“Exempted Fundamental Change” means any Fundamental Change with respect to which, in accordance with Section 15.02(d) or Section 15.02(e), the Issuers do not offer to repurchase any Notes.
“Existing Senior Notes” means the Issuers’ 7.875% Senior Notes due 2030, 9.875% Senior Notes due 2030 and 7.250% Senior Notes due 2034, in each case as amended, supplemented or otherwise modified from time to time.
“Expiration Date” shall have the meaning specified in Section 14.04(e).
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, and any current or future U.S. Treasury Regulations or rulings promulgated thereunder.
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“Form of Fundamental Change Repurchase Notice” shall mean the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.
“Form of Notice of Exchange” shall mean the “Form of Notice of Exchange” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.
“Fundamental Change” shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:
| a) | any person, including any syndicate or group deemed to be a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than PBF Energy, PBF Holding, PBF Finance, their respective Subsidiaries and their respective employee benefit plans, makes a public filing under the Exchange Act disclosing that it has become, directly or indirectly, the “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of PBF Energy’s Common Equity representing more than 50% of the voting power of PBF Energy’s Common Equity; |
| b) | the consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, or other property or assets; (B) any share exchange, consolidation or merger of PBF Energy pursuant to which the Common Stock will be converted into cash, securities, other property or assets (including cash or any combination thereof); or (C) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of (i) PBF Energy’s consolidated assets, taken as a whole, to any Person other than one or more of PBF Energy’s direct or indirect Subsidiaries or (ii) PBF Holding’s consolidated assets, taken as a whole, to any Person other than PBF Energy or one or more of PBF Energy’s direct or indirect Subsidiaries; provided, however, that a transaction described in clause (A) or (B) in which the holders of all classes of PBF Energy’s Common Equity (other than the Class B Common Stock) immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of the Common Equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such transaction in substantially the same proportions (vis-a-vis each other) as such ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b); |
| c) | PBF Holding’s member or PBF Energy’s stockholders approve any plan or proposal for the liquidation or dissolution of PBF Holding or PBF Energy; or |
| d) | the Common Stock (or other Common Equity for which the Notes are then exchangeable) ceases to be listed or admitted or approved for trading on any Designated Exchange, other than in connection, and substantially contemporaneously, with a Fundamental Change described in clause (a), (b) or (c) above (it being agreed that, if the Common Stock or such other Common Equity is listed or admitted or approved for trading on any Designated Exchange, a Fundamental Change shall not occur under this clause (d)); |
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provided, however, that a transaction or transactions described in clause (a) or (b) above shall not constitute a Fundamental Change if at least 90% of the consideration received or to be received by the holders of the Common Stock, excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ or appraisal rights, in connection with such transaction or transactions consists of shares of Common Equity (other than the Class B Common Stock) or American depositary shares in respect of Common Equity that are listed or quoted on any Designated Exchange or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions, and as a result of such transaction or transactions such consideration becomes the Reference Property for the Notes (subject to the provisions set forth in Section 14.02).
Any event, transaction or series of related transactions that constitute a Fundamental Change under both clause (a) and clause (b) above (determined without regard to the proviso in clause (b) above) shall be deemed to be a Fundamental Change solely under clause (b) above.
Solely for the purposes of clause (c) and solely in the case of PBF Holding, for the avoidance of doubt, it shall not be deemed to be a fundamental change if PBF Holding is liquidated or dissolved following a transaction effected in compliance with Section 11.02.
If any transaction in which the Common Stock is replaced by Common Equity of another entity occurs, following completion of any related Make-Whole Fundamental Change Period (or, in the case of a transaction that would have been a Fundamental Change or a Make-Whole Fundamental Change but for the proviso immediately following clause (d) of this definition, following the effective date of such transaction), references to PBF Energy in this definition shall instead be references to such other entity.
“Fundamental Change Company Notice” shall have the meaning specified in Section 15.02(c).
“Fundamental Change Repurchase Date” shall have the meaning specified in Section 15.02(a).
“Fundamental Change Repurchase Notice” shall have the meaning specified in Section 15.02(b)(i).
“Fundamental Change Repurchase Price” shall have the meaning specified in Section 15.02(a).
“GAAP” means generally accepted accounting principles in the United States which are in effect on the Issue Date.
The terms “given”, “mailed”, “notify” or “sent” with respect to any notice to be given to a Holder pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the Depositary (in the case of a Global Note) or (y) mailed to such Holder by first class mail, postage prepaid, at its address as it appears on the Note Register (in the case of a Physical Note), in each case, in accordance with Section 17.03. Notice so “given” shall be deemed to include any notice to be ”mailed” or “delivered,’ as applicable, under this Indenture.
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“Guarantee” means a guarantee of the Issuers’ obligations under the Notes and this Indenture by a Guarantor pursuant to Article 5.
“Guarantor” means each subsidiary of PBF Holding, other than PBF Finance, that currently guarantees any Existing Senior Notes and each such subsidiary that in the future guarantees any Existing Senior Notes or any other Capital Markets Indebtedness of the Issuers, and “Guarantors” means all such entities collectively.
“Guarantor Business Combination Event” shall have the meaning specified in Section 11.04.
“Guarantor Successor Entity” shall have the meaning specified in Section 11.04.
“Global Note” shall have the meaning specified in Section 2.05(a).
“Holder,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), shall mean any person in whose name at the time a particular Note is registered on the Note Register. The registered Holder of a Note shall be treated as its owner for all purposes.
“Indenture” means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.
“Instructions” shall have the meaning specified in Section 17.03.
“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Issue Date” means September 17, 2026.
“Issuers” means PBF Holding and PBF Finance, collectively and each individually as an issuer of the Notes, and subject to the provisions of Article 11, includes their respective successors and assigns.
“Last Reported Sale Price” per share of Common Stock on any date means:
| (a) | the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on such date as reported in composite transactions for the Relevant Stock Exchange; |
| (b) | if the Common Stock is not listed for trading on a Relevant Stock Exchange on such date, the last quoted bid price per share for the Common Stock in the over-the-counter market on such date as reported by OTC Markets Group Inc. or a similar organization; and |
| (c) | if the Common Stock is not so quoted, the average of the mid-point of the last bid and ask prices per share for the Common Stock on such date from each of at least three nationally recognized independent investment banking firms selected by the Issuers for this purpose. |
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“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental Change, after giving effect to any exceptions to or exclusions from the definition thereof, but without regard to the proviso in clause (b) of the definition thereof.
“Make-Whole Fundamental Change Company Notice” shall have the meaning specified in Section 14.03(b).
“Make-Whole Fundamental Change Period” shall have the meaning specified in Section 14.03(a).
“Market Disruption Event” means:
| (d) | a failure by the Relevant Stock Exchange to open for trading during its regular trading session; or |
| (e) | the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the Relevant Stock Exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock. |
“Maturity Date” means January 15, 2032.
“Measurement Period” shall have the meaning specified in Section 14.01(b)(i).
“Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals of this Indenture.
“Note Register” shall have the meaning specified in Section 2.05.
“Note Registrar” shall have the meaning specified in Section 2.05.
“Notice of Exchange” shall have the meaning specified in Section 14.02(b)(ii)(A).
“Notice of Redemption” shall have the meaning specified in Section 16.02(a).
“Observation Period” with respect to any Note surrendered for exchange means:
(i) subject to clause (ii), if the relevant Exchange Date occurs prior to October 15, 2031, the 30 consecutive VWAP Trading Day period beginning on, and including, the second VWAP Trading Day immediately succeeding such Exchange Date;
(ii) if the relevant Exchange Date occurs on or after the date of the Issuers’ issuance of a Notice of Redemption with respect to the Notes pursuant to Section 16.02 and prior to the relevant Redemption Date, the 30 consecutive VWAP Trading Days beginning on, and including, the 31st Scheduled Trading Day immediately preceding such Redemption Date; and
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(iii) subject to clause (ii), if the relevant Exchange Date occurs on or after October 15, 2031, the 30 consecutive VWAP Trading Day period beginning on, and including, the 31st Scheduled Trading Day immediately preceding the Maturity Date.
“Offering Memorandum” means the Preliminary Offering Memorandum, dated September 14, 2026, as supplemented by the related pricing term sheet, dated September 14, 2026, relating to the offering and sale of the Notes issued on the Issue Date.
“Officer” means, with respect to any Person, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Operating Officer, the Chief Legal Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary (a) of such Person or (b) if such Person is owned or managed by a single entity, of such entity.
“Officer’s Certificate” means a certificate signed on behalf of PBF Energy, the Issuers or the Guarantors by an Officer of such entity that meets the requirements of Section 17.06.
“Open of Business” means 9:00 a.m. (New York City time).
“Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee, that includes the statements provided for in Section 17.06 if and to the extent required by the provisions of Section 17.06. The counsel may be an employee of or counsel to the Issuers or PBF Energy or any Subsidiary of the Issuers or PBF Energy.
“Optional Redemption” shall have the meaning specified in Section 16.01(b).
“Outstanding,” when used with reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except:
| (a) | Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation; |
| (b) | Notes, or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Issuers) or shall have been set aside and segregated in trust by the Issuers (if the Issuers shall act as their own Paying Agent); |
| (c) | Notes in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is presented that any such Notes are held by protected purchasers in due course; |
| (d) | Notes surrendered for purchase in accordance with Article 15 for which the Paying Agent holds money sufficient to pay the Fundamental Change Repurchase Price, in accordance with Section 15.04(b); |
| (e) | Notes exchanged pursuant to Article 14 and required to be cancelled pursuant to Section 2.08; and |
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| (f) | Notes redeemed or repurchased by the Issuers. |
“Partial Redemption Limitation” shall have the meaning specified in Section 16.01(b).
“Paying Agent” shall have the meaning specified in Section 4.02.
“PBF Energy” means PBF Energy Inc., a Delaware corporation, and its successors and assigns.
“PBF Energy Business Combination Event” shall have the meaning set forth in Section 11.01.
“PBF Finance” means PBF Finance Corporation, a Delaware corporation, and its successors and assigns.
“PBF Finance Business Combination Event” shall have the meaning set forth in Section 11.02.
“PBF Holding” means PBF Holding Company LLC, a Delaware limited liability company, and its successors and assigns.
“PBF Holding Business Combination Event” shall have the meaning set forth in Section 11.02.
“Person” means any individual, corporation, company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.
“Qualified Institutional Buyer” shall mean a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Successor Entity” means, with respect to a PBF Energy Business Combination Event, a corporation; provided, however, that a limited liability company, limited partnership or other similar entity will also constitute a qualified successor entity with respect to such business combination event if either (i) such business combination event is an Exempted Fundamental Change; or (ii) both of the following conditions are satisfied: (1) either (a) such limited liability company, limited partnership or other similar entity, as applicable, is treated as a corporation or is a direct or indirect, wholly owned subsidiary of, and disregarded as an entity separate from, a corporation, in each case for U.S. federal income tax purposes; or (b) the Issuers have received an opinion of a nationally recognized tax counsel to the effect that such business combination event will not be treated as an exchange under Section 1001 of the Internal Revenue Code, for holders or beneficial owners of the Notes; and (2) such PBF Energy Business Combination Event constitutes a Specified Corporate Event whose reference property consists solely of any combination of cash in U.S. dollars and shares of Common Stock or other corporate Common Equity interests of an entity
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that is (I) treated as a corporation for U.S. federal income tax purposes; (II) duly organized and existing under the laws of the United States of America, any State thereof or the District of Columbia; and (III) the direct or indirect parent (and a related party within the meaning of Section 267 or 707(b)(1) of the Internal Revenue Code) of such limited liability company, limited partnership or other similar entity.
“Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of the Common Stock have the right to receive any cash, securities or other property or in which the Common Stock is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock entitled to receive such cash, securities or other property (whether such date is fixed by PBF Energy’s Board of Directors, statute, contract or otherwise).
“Redemption” means the redemption of any Note by the Issuers pursuant to Article 16.
“Redemption Date” shall have the meaning specified in Section 16.02(a).
“Redemption Notice Date” means, with respect to a Redemption, the date on which the Issuers send the applicable Notice of Redemption to the applicable Holders for such Redemption pursuant to Section 16.02(a).
“Redemption Price” means, for any Notes to be redeemed pursuant to Section 16.01, 100% of the principal amount of such Notes, plus accrued and unpaid Special Interest, if any, to, but not including, the Redemption Date (unless the Redemption Date falls after an applicable Special Interest Record Date but on or prior to the immediately succeeding Special Interest Payment Date, in which case the interest accrued to, but not including, such Special Interest Payment Date will be paid to the Holder as of the Close of Business on such Special Interest Record Date (assuming, solely for these purposes, that such Note remained outstanding through such Special Interest Payment Date, if such Redemption Date is before such Special Interest Payment Date) and the Redemption Price will be equal to 100% of the principal amount of Notes to be redeemed). For the avoidance of doubt, if a Special Interest Payment Date is not a Business Day and such Redemption Date occurs on the Business Day immediately after such Special Interest Payment Date, then (x) accrued and unpaid Special Interest, if any, on Notes to, but not including, such Special Interest Payment Date will be paid, in accordance with Section 17.07, on the next Business Day to Holders at the Close of Business on the immediately preceding Special Interest Record Date, and (y) the Redemption Price will include interest on Notes to be redeemed from, and including, such Special Interest Payment Date to, but not including, such Redemption Date.
“Redemption Reference Price” means, for any exchange of Notes in connection with a Redemption, the average of the Last Reported Sale Prices per share of Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Redemption Notice Date.
“Reference Property” shall have the meaning specified in Section 14.08(a).
“Registration Default” shall have the meaning specified in the Registration Rights Agreement.
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“Registration Default Special Interest” means the “Registration Default Special Interest” payable pursuant to Article IV of the Registration Rights Agreement.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of September 17, 2026, among PBF Energy, the Issuers and the investors named on the signature pages thereto, as amended from time to time in accordance with its terms, pursuant to which PBF Energy and the Issuers will have registration obligations, including filing with the Commission a shelf registration statement or a resale prospectus supplement to an effective shelf registration statement on or prior to December 31, 2026.
“Relevant Stock Exchange” means The New York Stock Exchange or, if the Common Stock (or other security for which a Last Reported Sale Price or the Daily VWAP, as the case may be, must be determined) is not then listed on The New York Stock Exchange, the principal other Designated Exchange on which the Common Stock (or such other security) is then listed.
“Reporting Event of Default” shall have the meaning specified in Section 6.03(a).
“Responsible Officer” means, with respect to the Trustee, any officer of the Trustee located at the Corporate Trust Office of the Trustee or to whom any corporate trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject, and, in each case, who shall have direct responsibility for the administration of this Indenture.
“Restricted Securities” shall have the meaning specified in Section 2.05(b).
“Rule 144A” means Rule 144A as promulgated under the Securities Act.
“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the Relevant Stock Exchange. If the Common Stock is not so listed or admitted for trading on a Relevant Stock Exchange, “Scheduled Trading Day” means a “Business Day.”
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Separation Event” shall have the meaning specified in Section 14.11.
“Settlement Amount” has the meaning specified in Section 14.02(a)(iii).
“Settlement Method” means, with respect to any exchange of Notes, Cash Settlement or Combination Settlement, as elected (or deemed to have been elected) by the Issuers.
“Significant Subsidiary” means a Subsidiary of either Issuer, any Guarantor or any of their respective Subsidiaries that is a “significant subsidiary” as defined under Rule 1-02(w) of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date.
“Special Interest” means all amounts, if any, payable pursuant to Section 4.06(d) and Section 6.03, as applicable.
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“Special Interest Payment Date” means January 15 and July 15 of each year, beginning on January 15, 2027 (if and to the extent Special Interest is then payable).
“Special Interest Record Date,” with respect to any Special Interest Payment Date, shall mean the January 1 or July 1 (whether or not such day is a Business Day), as the case may be, immediately preceding such Special Interest Payment Date.
“Specified Corporate Event” shall have the meaning specified in Section 14.07(a).
“Specified Dollar Amount” means, with respect to any exchange of Notes, the maximum cash amount per $1,000 principal amount of Notes to be received upon exchange as specified by the Issuers (or deemed specified) in the notice specifying the Issuers’ chosen Settlement Method.
“Spin-Off” shall have the meaning specified in Section 14.04(c).
“Stock Price” shall have the meaning specified in Section 14.03(c).
“Subsidiary” means, with respect to any Person:
| (a) | any corporation, company, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person; and |
| (b) | any partnership, joint venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interest or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person, in each case, whether in the form of membership, general, special or limited partnership interests or otherwise, and (y) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity. |
“Successor Company” shall have the meaning specified in Section 11.02(a)(i).
“Successor PBF Energy” shall have the meaning specified in Section 11.01(a)(i).
“Trading Day” means a day on which:
| (a) | trading in the Common Stock (or other security for which a Last Reported Sale Price must be determined) generally occurs on the Relevant Stock Exchange or, if the Common Stock (or such other security) is not then listed on a Relevant Stock Exchange, on the principal other market on which the Common Stock (or such other security) is then traded; and |
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| (b) | a Last Reported Sale Price per share of Common Stock (or Last Reported Sale Price for such other security) is available on the Relevant Stock Exchange or such other market; |
provided, that, if the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a “Business Day.”
“Trading Price” per $1,000 principal amount of the Notes on any date of determination means the average of the secondary market bid quotations obtained in writing by the Bid Solicitation Agent for $2,000,000 principal amount of Notes at approximately 3:30 p.m. (New York City time) on such determination date from three independent U.S. nationally recognized securities dealers the Issuers select for this purpose; provided that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of such two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $2,000,000 principal amount of Notes from an independent U.S. nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price per share of the Common Stock and the Exchange Rate on such day.
“transfer” shall have the meaning specified in Section 2.05(b).
“Trigger Event” shall have the meaning specified in Section 14.04(c).
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.
“Unit of Reference Property” shall have the meaning specified in Section 14.07(a).
“Valuation Period” shall have the meaning specified in Section 14.04(c).
“VWAP Trading Day” means a day on which:
a) there is no Market Disruption Event; and
b) trading in the Common Stock generally occurs on the Relevant Stock Exchange.
If the Common Stock is not so listed or admitted for trading on any Relevant Stock Exchange, “VWAP Trading Day” means a “Business Day.”
Section 1.02 References to Interest. Unless the context otherwise requires, any reference to interest or Special Interest on, or in respect of, any Note in this Indenture shall be deemed to refer solely to Special Interest (including Registration Default Special Interest), if any, payable pursuant to Section 4.06(d) and Section 6.03 and to any Default Interest (as defined in Section 2.03(c)), if any, payable on the Notes.
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Section 1.03 PBF Energy. Notwithstanding anything herein to the contrary, PBF Energy and its Subsidiaries (other than Issuers and certain of their respective Subsidiaries) are not Guarantors of or obligors under the Notes or under this Indenture or the Notes and shall have no payment or indemnification obligations, including with respect to the Trustee, hereunder.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01 Designation and Amount. The Notes shall be designated as the “0% Exchangeable Senior Notes due 2032.” The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $550,000,000, subject to Section 2.10 and except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of other Notes pursuant to Section 2.05, Section 2.06, Section 2.07, Section 10.04, Section 14.02 and Section 15.04.
Section 2.02 Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of this Indenture. To the extent applicable, Issuers, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. In the case of any conflict between this Indenture and a Note, the provisions of this Indenture shall control and govern to the extent of such conflict.
Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes are subject.
Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as any Officer executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.
Each Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect repurchases, cancellations, exchanges for cash, shares of Common Stock or a combination thereof, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the Holder of
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such Notes in accordance with this Indenture. Payment of principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid Special Interest, if any, on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining Holders eligible to receive payment is provided for herein.
Section 2.03 Date and Denomination of Notes; No Regular Interest; Payments of Interest and Defaulted Amounts (a) The Notes shall be issuable in registered form without coupons in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof. Each Note shall be dated the date of its authentication and shall not bear regular interest, and the principal amount of the Notes shall not accrete. Special Interest, if any, on the Notes shall accrue during the periods specified in Section Section 4.06(d) and Section 6.03, as applicable, be computed on the basis of a 360-day year composed of twelve 30-day months and, for a partial month, on the basis of the number of days actually elapsed in a 30-day month.
(b) The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the Close of Business on the applicable Special Interest Record Date immediately preceding any Special Interest Payment Date, to the extent Special Interest is payable, shall be entitled to receive the interest payable on such Special Interest Payment Date. Interest shall be payable at the office or agency of the Issuers maintained by the Issuers for such purposes, which shall initially be the Corporate Trust Office. The Issuers shall pay interest:
(i) on any Certificated Notes (A) to Holders holding Certificated Notes having an aggregate principal amount of $1,000,000 or less, by check mailed to the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding Certificated Notes having an aggregate principal amount of more than $1,000,000, either by check mailed to such Holders or, upon application by such a Holder to the Note Registrar not later than the relevant applicable Special Interest Record Date, to the extent any Special Interest is then payable, by wire transfer in immediately available funds to that Holder’s account within the United States of America if such Holder has provided the Company, the Trustee, the Note Registrar or the Paying Agent (if other than the Trustee) with the requisite information necessary to make such wire transfer, which application shall remain in effect until the Holder notifies the Note Registrar to the contrary in writing; and
(ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.
(c) Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date and shall not accrue interest unless Special Interest was payable with respect to such Defaulted Amounts on the relevant payment date, in which case such Defaulted Amounts shall accrue interest per annum at the then applicable Special Interest rate borne by the Notes (any such interest, “Default Interest”) from, and including, such relevant payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Issuers, at their election in each case, as provided in clause (i) or (ii) below:
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(i) The Issuers may elect to make payment of any Defaulted Amounts and Default Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the Close of Business on a special record date for the payment of such Defaulted Amounts and Default Interest, which shall be fixed in the following manner. The Issuers shall notify the Trustee in writing of the amount of the Defaulted Amounts and Default Interest proposed to be paid on each Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Issuers shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts and Default Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Amounts and Default Interest as in this clause provided. Thereupon the Issuers shall fix a special record date for the payment of such Defaulted Amounts and Default Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Issuers shall promptly notify the Trustee in writing of such special record date and the Trustee, in the name and at the expense of the Issuers received at least two (2) Business Days before such notice is to be sent, shall cause notice of the proposed payment of such Defaulted Amounts and Default Interest and the special record date therefor to be sent to each Holder at its address as it appears in the Note Register, not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Amounts and Default Interest and the special record date therefor having been sent, such Defaulted Amounts and Default Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the Close of Business on such special record date and shall no longer be payable pursuant to the following clause (ii) of this Section 2.03(c).
(ii) The Issuers may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system and the Depositary, if, after notice given by the Issuers to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed satisfactory to the Trustee.
(iii) The Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine the Defaulted Amounts or Default Interest, or with respect to the nature, extent, or calculation of the amount of Defaulted Amounts or Default Interest owed, or with respect to the method employed in such calculation of the Defaulted Amounts or Default Interest.
Section 2.04 Execution, Authentication and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Issuers by the manual or electronic signature of at least one of its Officers.
At any time and from time to time after the execution and delivery of this Indenture, the Issuers may deliver Notes executed by the Issuers to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Issuers hereunder, provided that, subject to Section 17.05, the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel of the Company will respect to the issuance, authentication and delivery of such Note .
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Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the form of Note attached as Exhibit A hereto, executed manually or electronically by an authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 17.11), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Issuers shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any Officer of PBF Holding who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Issuers, such Notes nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Notes had not ceased to be such Officer of PBF Holding; and any Note may be signed on behalf of the Issuers by such persons as, at the actual date of the execution of such Note, shall be an Officer of PBF Holding, although at the date of the execution of this Indenture any such Person was not such an Officer.
Section 2.05 Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. The Issuers shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any other office or agency of the Issuers designated pursuant to Section 4.02, the “Note Register”) in which, subject to such reasonable regulations or procedures as it may prescribe, the Issuers shall provide for the registration of Notes and transfers of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided. The Issuers may appoint one or more co-Note Registrars in accordance with Section 4.02.
Upon surrender for registration of transfer of any Note to the Note Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05, the Issuers shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.
Notes may be exchanged for other Notes of any Authorized Denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Issuers pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the Issuers shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or for exchange, repurchase or exchange for cash, shares of Common Stock or a combination thereof shall (if so required by the Issuers, the Trustee, the Note Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuers and duly executed, by the Holder thereof or its attorney-in-fact duly authorized in writing.
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No service charge shall be imposed by the Issuers, the Trustee, the Note Registrar or any co-Note Registrar for any registration of transfer of Notes or exchange of Notes for other Notes, but the Issuers or the Trustee may require a Holder to pay a sum sufficient to cover any transfer tax or other similar governmental charge required by law or permitted pursuant to Section 14.02(d) or Section 14.02(e).
None of the Issuers, the Trustee, the Note Registrar or any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for exchange for cash, shares of Common Stock or a combination thereof or, if a portion of any Note is surrendered for exchange for cash, shares of Common Stock or a combination thereof, such portion thereof surrendered for exchange for cash, shares of Common Stock or a combination thereof, (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15 or (iii) any Notes, or a portion of any Note, surrendered for redemption in accordance with Article 16.
All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Issuers, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.
(a) So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to the fourth paragraph from the end of Section 2.05(b) all Notes shall be represented by one or more Notes in global form (each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary. The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a Certificated Note, shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions on transfer set forth herein) and the Applicable Procedures.
(b) Every Note that bears or is required under this Section 2.05(b) to bear the legend set forth in this Section 2.05(b) (together with any shares of Common Stock issued or delivered upon exchange of the Notes and required to bear the applicable legend set forth in Section 2.05(c), collectively, the “Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(b) (including the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Issuers, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 2.05(b) and Section 2.05(c), the term “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security. For the avoidance of doubt, the restrictions and legends set forth in this Section 2.05(b) shall not be applicable to any shares of Common Stock issued or delivered upon exchange of the Notes (which such restrictions and legends are set forth in Section 2.05(c)).
Any certificate evidencing such Note (and all securities issued in exchange therefor or substitution thereof, other than shares of Common Stock, if any, issued or delivered upon exchange thereof, which shall bear the legend set forth in Section 2.05(c), if applicable) shall bear a legend in the following form (unless otherwise agreed by the Issuers in writing, with notice thereof to the Trustee):
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
| (1) | REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT AND |
| (2) | AGREES FOR THE BENEFIT OF PBF HOLDING COMPANY LLC AND PBF FINANCE CORPORATION (THE “ISSUERS”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN EXCEPT: |
(A) TO PBF HOLDING COMPANY LLC, PBF FINANCE CORPORATION, PBF ENERGY INC. OR ANY SUBSIDIARY OF ANY OF THEM, OR
(B) TO A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (B) ABOVE, THE ISSUERS, THE TRUSTEE AND THE REGISTRAR RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
Notwithstanding any other provisions of this Indenture (other than the provisions set forth in this Section 2.05(b)), a Global Note may not be transferred as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for transfers of portions of a Global Note in certificated form made upon request of a member of, or a participant in, the Depositary (for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on behalf of the Depositary in accordance with Applicable Procedures and in compliance with this Section 2.05(b).
The Depositary shall be a clearing agency registered under the Exchange Act. The Issuers initially appoint The Depository Trust Company to act as the “Depositary” with respect to each Global Note. Initially, each Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.
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If:
(x) the Depositary (i) notifies the Issuers at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 days or (ii) ceases to be a clearing agency registered under the Exchange Act and a successor depositary is not appointed within 90 days; or
(y) there has occurred and is continuing an Event of Default and a beneficial owner of any Note requests through the Depositary that its beneficial interest therein be issued in a Certificated Note,
the Issuers shall execute, and the Trustee, upon receipt of an Officer’s Certificate, an Opinion of Counsel and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver Certificated Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.
Certificated Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(b) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Certificated Notes to the Persons in whose names such Certificated Notes are so registered.
At such time as all interests in a Global Note have been exchanged, canceled, repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with Applicable Procedures and existing instructions between the Depositary and the Custodian. At any time prior to such cancellation, if any interest in a Global Note is exchanged for Certificated Notes, exchanged, canceled, repurchased or transferred to a transferee who receives Certificated Notes therefor or any Certificated Note is exchanged or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance with the Applicable Procedures and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.
None of the Issuers, the Trustee and any agent of the Issuers or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests. None of the Issuers and the Trustee shall have any responsibility or liability for any act or omission of the Depositary.
All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to, or upon the order of, the registered Holder(s) (which shall be the Depositary or its nominee in the case of a Global Note).
Except as expressly provided herein, the rights of the beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
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(c) If any shares of Common Stock are issued or delivered upon exchange of the Notes, any stock certificate representing such shares of Common Stock shall bear a legend in the following form (unless (x) such shares of Common Stock have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, (y) such shares of Common Stock have been transferred pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act or (z) otherwise agreed by PBF Energy in writing, with notice thereof to the Trustee and any transfer agent for the Common Stock):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR THE BENEFIT OF PBF ENERGY INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE DATE ON WHICH THIS SECURITY WAS ISSUED OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO PBF ENERGY INC. OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (D) ABOVE, PBF ENERGY INC. AND THE TRANSFER AGENT FOR THE COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
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(d) In addition to bearing any applicable legend set forth in this Section 2.05, any shares of Common Stock issued or delivered upon the exchange of a Note that is purchased or owned by an Affiliate of PBF Energy (or any Person who was an Affiliate of PBF Energy at any time during the three months preceding) may not be resold by such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such shares of Common Stock no longer being a “restricted security” (as defined under Rule 144 under the Securities Act). 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 members of, or participants in, the Depositary or beneficial owners of interests 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.
(e) Neither the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.
Section 2.06 Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Issuers in their discretion may execute, and upon its written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Issuers, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuers, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the Issuers and, if applicable, such authenticating agent may require. Upon the issuance of any substitute Note, the Issuers or the Trustee may require the payment by the Holder of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Note that has matured or is about to mature, is subject to Redemption, or has been surrendered for repurchase or is about to be exchanged in accordance with Article 14 shall become mutilated or be destroyed, lost or stolen, the Issuers may, in their sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or exchange or authorize the exchange of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or exchange shall furnish to the Issuers, to the Trustee and, if applicable, to any Paying Agent or Exchange Agent such security or indemnity as may be required by them to save each of them harmless from any loss, liability, cost or expense caused by or connected with such payment or exchange, and, in every case of destruction, loss or theft, evidence satisfactory to the Issuers, the Trustee and, if applicable, any Paying Agent or Exchange Agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
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Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuers, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment or exchange or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment or exchange of negotiable instruments or other securities without their surrender.
Section 2.07 Temporary Notes. Pending the preparation of Certificated Notes, the Issuers may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon written request of the Issuers, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Certificated Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Issuers. Every such temporary Note shall be executed by the Issuers and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Certificated Notes. Without unreasonable delay, the Issuers shall execute and deliver to the Trustee or such authenticating agent Certificated Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Issuers pursuant to Section 4.02 and the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Certificated Notes. Such exchange shall be made by the Issuers at their own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Certificated Notes authenticated and delivered hereunder.
Section 2.08 Cancellation of Notes Paid, Exchanged, Etc. The Issuers shall cause all Notes surrendered for the purpose of payment, redemption, repurchase (but excluding Notes repurchased pursuant to cash-settled swaps or other derivatives that are not physically settled), registration of transfer or exchange, or exchange for cash, shares of Common Stock or a combination thereof (subject to the provisions of Section 14.02(j)), if surrendered to any Person other than the Trustee (including any of the Issuers’ agents or Subsidiaries), to be delivered to the Trustee for cancellation, and such Notes shall no longer be considered outstanding for purposes of this Indenture upon their payment, redemption, repurchase, registration of transfer or exchange, or exchange for cash, shares of Common Stock or a combination thereof (subject to the provisions of Section 14.02(j)). All Notes delivered to the Trustee for cancellation shall be cancelled promptly by it. No Notes shall be authenticated in exchange for any Notes cancelled, except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of canceled Notes in accordance with its customary procedures. If the Issuers or any of the Issuers’ Subsidiaries shall acquire any of the Notes, such acquisition shall not operate as a purchase or satisfaction of the indebtedness represented by such Notes unless and until the same are delivered to the Trustee for cancellation.
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Section 2.09 CUSIP Numbers. The Issuers in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee may use “CUSIP” numbers in notices issued to Holders as a convenience to such Holders; provided that the Trustee shall have no liability for any defect in the “CUSIP” numbers as they appear on any Note, notice or elsewhere, and provided, further, 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 on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Issuers shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
Section 2.10 Additional Notes; Purchases. (a) The Issuers may, subject to applicable stock exchange rules, from time to time, without the consent of, or notice to, the Holders, issue additional Notes under this Indenture with the same terms and with the same CUSIP number as the Notes issued on the Issue Date (other than differences in the issue date, the issue price, the date from which interest will accrue, interest accrued prior to the issue date of such additional Notes, the initial Special Interest Payment Date (as applicable) and restrictions on transfer in respect of such additional Notes, including the date by which any restrictive legends are required to be removed) in an unlimited aggregate principal amount; provided that if any such additional Notes are not fungible with the Notes issued on the Issue Date for U.S. federal income tax purposes, such additional Notes shall have one or more separate CUSIP numbers or have no CUSIP number. Such Notes issued on the Issue Date and the additional Notes shall rank pari passu and ratably and shall be treated as a single series for all purposes under this Indenture. Prior to the issuance of any such additional Notes, the Issuers shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate and Opinion of Counsel to cover such matters, in addition to those required by Section 17.06, as the Trustee shall reasonably request.
(b) The Issuers or PBF Energy may, to the extent permitted by law and without the consent of Holders, directly or indirectly (regardless of whether such Notes are surrendered to the Issuers), repurchase or purchase, as the case may be, Notes in the open market or otherwise, whether by the Issuers or PBF Energy or their respective Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives. The Issuers shall cause any Notes so repurchased (but excluding Notes repurchased pursuant to cash-settled swaps or other derivatives that are not physically settled) to be surrendered to the Trustee for cancellation in accordance with Section 2.08, and they will no longer be considered outstanding under this Indenture upon this repurchase.
ARTICLE 3
SATISFACTION AND DISCHARGE
Section 3.01 Satisfaction and Discharge. This Indenture and the Notes shall upon request of the Issuers contained in an Officer’s Certificate cease to be of further effect (except as set forth in the last paragraph of this Section 3.01), and the Trustee, at the expense of the Issuers, shall execute such instruments reasonably request by the Issuers acknowledging satisfaction and discharge of this Indenture, when:
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(i) either:
(A) all Notes theretofore authenticated and delivered (other than (x) Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.06 and (y) Notes for whose payment money has theretofore been deposited in trust with the Trustee or segregated and held in trust by the Issuers and thereafter repaid to the Issuers or discharged from such trust, as provided in Section 4.04(d)) have been delivered to the Note Registrar for cancellation; or
(B) the Issuers have deposited with the Trustee or delivered to Holders, as applicable, after all of the outstanding Notes have (i) become due and payable, whether at the Maturity Date, upon Redemption or at any Fundamental Change Repurchase Date, or (ii) been exchanged (and the related exchange settlement amounts have been determined), cash or cash and shares of Common Stock (solely to satisfy outstanding exchanges), as applicable, sufficient to pay all of the outstanding Notes or satisfy all exchanges, as the case may be, and pay all other sums payable under this Indenture by the Issuers; and
(ii) the Issuers have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuers to the Trustee under Section 7.06 and, if cash or shares of Common Stock shall have been deposited with the Paying Agent pursuant to Section 3.01(i)(B), Section 4.04 shall survive such satisfaction and discharge.
ARTICLE 4
PARTICULAR COVENANTS OF THE ISSUERS AND PBF ENERGY
Section 4.01 Payment of Principal, Settlement Amounts and Interest. The Issuers shall pay or cause to be paid the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, the Settlement Amounts owed on exchange of, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, Settlement Amounts and interest shall be considered paid on the date due if the Paying Agent, if other than the Issuers, holds as of 10:00 a.m., New York City time, on the due date money deposited by the Issuers in immediately available funds and designated for and sufficient to pay all principal, Settlement Amounts and interest then due. Unless such Paying Agent is the Trustee, the Issuers will promptly notify the Trustee of any failure to take such action.
The Issuers shall pay interest on overdue principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) and overdue Settlement Amounts owed on exchange to the extent they include cash, at the rate equal to the interest rate on the Notes to the extent lawful; they shall pay interest on overdue installments of interest (without regard to any applicable grace period), at the same rate to the extent lawful.
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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) where Notes may be presented or surrendered for registration of transfer or exchange or for payment, redemption or repurchase (“Paying Agent”) or for exchange (“Exchange Agent”) 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. The Issuers shall, at all times, maintain an office or agency in the continental United States to serve as the Issuers’ Paying Agent and Exchange Agent for the Notes. 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. Further, if at any time there shall be no such office or agency in the continental United States where the Notes may be presented or surrendered for payment, the Issuers shall forthwith designate and maintain such an office or agency in the continental United States, in order that the Notes shall at all times be payable in the continental United States. 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 terms “Paying Agent” and “Exchange Agent” include any such additional or other offices or agencies, as applicable.
The Issuers hereby appoint the Trustee as Paying Agent, Note Registrar, Custodian and Exchange Agent and designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuers; provided that the Corporate Trust Office shall not be a place for service of legal process for the Issuers.
Section 4.03 Appointments to Fill Vacancies in Trustee’s Office. The Issuers, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.04 Provisions as to Paying Agent. (a) If the Issuers shall appoint a Paying Agent other than the Trustee, the Issuers will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:
(i) that it will hold all sums held by it as such agent for the payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, the Settlement Amounts owed on exchange to the extent they include cash, and accrued and unpaid Special Interest, if any, on, the Notes in trust for the benefit of the Holders of the Notes;
(ii) that it will give the Trustee prompt notice of any failure by the Issuers to make any payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, the Settlement Amounts owed on exchange to the extent they include cash, and accrued and unpaid Special Interest, if any, on, the Notes when the same shall be due and payable; and
(iii) that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.
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(b) If the Issuers shall act as their own Paying Agent, it will, on or before each due date of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, the Settlement Amounts owed on exchange to the extent they include cash, and accrued and unpaid Special Interest, if any, on, the Notes, set aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), cash portion of the Settlement Amounts and accrued and unpaid Special Interest, if any, so becoming due and will promptly notify the Trustee in writing of any failure to take such action and of any failure by the Issuers to make any payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, the Settlement Amounts owed on exchange to the extent they include cash, or accrued and unpaid Special Interest, if any, on, the Notes when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the Issuers may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid, issue or deliver to the Trustee all sums or amounts held in trust by the Issuers or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be held by the Trustee upon the trusts herein contained and upon such payment, issuance or delivery by the Issuers or any Paying Agent to the Trustee, the Issuers or such Paying Agent shall be released from all further liability but only with respect to such sums or amounts.
(d) Subject to applicable escheat laws, any money deposited with the Trustee or any Paying Agent, or then held by the Issuers, in trust for the payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, the Settlement Amounts owed on exchange to the extent they include cash, and accrued and unpaid Special Interest, if any, on, any Note and remaining unclaimed for two years after such principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), the Settlement Amounts owed on exchange to the extent they include cash, or interest has become due and payable shall be paid to the Issuers on request of the Issuers contained in an Officer’s Certificate, or (if then held by the Issuers) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general 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, and all liability of the Issuers as trustee thereof, shall thereupon cease.
(e) Upon the occurrence of any Event of Default specified in Section 6.01(i) or Section 6.01(j), the Trustee shall automatically become the Paying Agent.
Section 4.05 [Reserved].
Section 4.06 Rule 144A Information Requirement; Reporting; and Registration Default Special Interest. (a) For as long as any Notes are outstanding hereunder, (i) the Issuers will and (ii) PBF Energy will, for so long as any shares of Common Stock issuable or deliverable upon exchange of the Notes would, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, in each case, furnish to the Trustee and, upon written request, furnish to any Holder, beneficial owner or prospective purchaser of such Notes or shares of Common Stock deliverable upon exchange of Notes the information with respect to the Issuers or PBF Energy, as applicable, required to be delivered pursuant to Rule 144A(d)(4) to facilitate the resale of such Notes or shares of Common
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Stock, as the case may be, pursuant to Rule 144A (as such rule may be amended from time to time); provided that any such information relating to the Issuers or PBF Energy, as the case may be, will be deemed furnished if during the preceding 12 months (i) PBF Energy has filed an Annual Report on Form 10-K or other report or filing (which may include a registration statement) prepared in accordance with the requirements of the Commission, in each case, containing information regarding PBF Energy of the nature and type contemplated by Rule 144A(d)(4) and/or (ii) PBF Holding has filed an Annual Report on Form 10-K or other report or filing (which may include a registration statement) prepared in accordance with the requirements of the Commission, in each case, containing information regarding PBF Energy of the nature and type contemplated by Rule 144A(d)(4), and in lieu of the information contemplated by clause (ii), will be deemed satisfied with respect to information regarding the Issuers so long as (x) such report or filing contains such required information relating to PBF Energy and (y) the combined or consolidated financial statements of PBF Energy included in such report or filing consolidate or otherwise include the accounts of PBF Holding and its consolidated subsidiaries, and explain in reasonable detail any differences between the information relating to PBF Energy, on the one hand, and the information relating to the Issuers and the Guarantors, on the other hand.
(b) The Issuers shall furnish to the Trustee any documents or reports that PBF Energy is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act or that PBF Holding voluntarily files with the SEC, within 15 days after the same (i) are required to be filed with the Commission (after giving effect to any grace period provided by Rule 12b-25 or any successor rule under the Exchange Act), in the case of PBF Energy, or (ii) would be required to be filed with the Commission, if PBF Holding was required to file such reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (after giving effect to any grace period provided by Rule 12b-25 or any successor rule under the Exchange Act that would be available in such case), in the case of PBF Holding. Notwithstanding the foregoing, the Issuers shall in no event be required to file with, otherwise provide or disclose to, the Trustee or any Holder any information for which PBF Energy or PBF Holding, as applicable, is requesting (assuming such request has not been denied), or has received, confidential treatment from the SEC. Documents or report that PBF Energy or PBF Holding, as applicable, files with the Commission via the EDGAR system (or any successor thereto) will be deemed furnished to the Trustee for purposes of, and in full satisfaction of, the Issuers’ obligations under this Section 4.06(a) as of the time such document is filed via EDGAR (or such successor).
(c) Delivery of the reports, information and documents described in this Section 4.06 to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ or PBF Energy’s compliance with their respective covenants under this Indenture or the Notes. The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, such compliance or to determine whether any reports or other documents have been filed with the Commission, filed via the Commission’s EDGAR system, posted on PBF Energy’s website or discussed on any conference call.
(d) Subject to Section 4.06(f) and Section 6.03(b), if a Registration Default occurs under the Registration Rights Agreement, the Issuers shall pay the Registration Default Special Interest in accordance with the Registration Rights Agreement.
(e) [Reserved.]
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(f) Registration Default Special Interest will be payable in arrears on each Special Interest Payment Date following accrual in the same manner as regular interest on the Notes and shall be in addition to any Special Interest that may accrue, at the Issuers’ election, as the sole remedy relating to the failure to comply with the Issuers’ obligations under Section 4.06(b). In no event, however, will Special Interest accrue on any day (taking into consideration any Special Interest payable as described in Section 4.06(d) or Section 6.03(a)) at a rate in excess of 0.50% per annum, regardless of the number of events or circumstances giving rise to the requirement to pay such Special Interest.
(g) If Special Interest is payable by the Issuers pursuant to Section 4.06(d) or Section 6.03(a), the Issuers shall deliver to the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Special Interest that is payable and (ii) the date on which such Special Interest is payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Special Interest is payable and the Trustee shall not have any duty to verify the Issuers calculation of any Special Interest.
Section 4.07 No Rights as Stockholders or Unitholders. Holders of Notes, as such, will not have any rights as stockholders of PBF Energy or as unitholders or stockholders, as the case may be, of the Issuers (including, without limitation, voting rights and rights to receive any dividends or other distributions on Common Stock).
Section 4.08 Limitations on Activities of PBF Finance. PBF Finance may not, directly or indirectly, consolidate or merge with or into or wind up into (whether or not PBF Finance is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of PBF Finance’s properties or assets, in one or more related transactions, to any Person unless: (1) after giving effect thereto, at least one obligor on the Notes shall be a corporation organized and validly existing under the laws of the United States, any State thereof, the District of Columbia or any territory thereof; (2) immediately after such transaction, no Default will have occurred and be continuing; and (3) PBF Finance shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, comply with this Indenture.
Section 4.09 Compliance Certificate; Statements as to Defaults.
(a) The Issuers shall deliver to the Trustee annually a statement regarding compliance with this Indenture.
(b) The Issuers shall deliver to the Trustee, within five Business Days after becoming aware of any Event of Default, a statement specifying such Event of Default, unless such Event of Default has been cured before the end of such five Business Day period.
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ARTICLE 5
GUARANTEES
Section 5.01 Guarantees.
Subject to this Article 5, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Authenticating Agent and to the Trustee, each Agent and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuers hereunder or thereunder: (a) the performance and full and punctual payment when due, whether at the Maturity Date, by acceleration or otherwise, of all obligations of the Issuers under the Indenture and the Notes, whether for payment of principal of, premium, if any, or Special Interest, if any, on the Notes, expenses, indemnification or otherwise. ; and (b) that in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
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 of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives, to the extent permitted by law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
Each Guarantor also agrees to pay any and all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees of one counsel) incurred by the Trustee, any Agent or any Holder in enforcing any rights under this Section 5.01.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuers, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or the Guarantors, any amount paid either to the Trustee, any Agent or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) 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 Guarantors for the purpose of this 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 Guarantees.
Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuers for liquidation, reorganization, should the Issuers become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers’ assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case
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may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
In case any provision of any Guarantee 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.
The Guarantee issued by any Guarantor shall be an unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future senior indebtedness of such Guarantor, if any.
Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Section 5.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 5, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
Section 5.03 Execution and Delivery.
To evidence its Guarantee set forth in Section 5.01 hereof, each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor by an Officer of such Guarantor. Each Guarantor hereby agrees that its Guarantee set forth in Section 5.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes. If an Officer whose signature is on this Indenture no longer holds that office at the time the Notes are authenticated as provided hereunder, the Guarantee shall be valid nevertheless. The delivery of any Note after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors. If required by Section 5.07 hereof, the Issuers shall cause any newly created or acquired Subsidiary to comply with the provisions of Section 5.07 hereof and this Article 5, to the extent applicable.
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Section 5.04 Subrogation.
Each Guarantor shall be subrogated to all rights of Holders of Notes against the Issuers in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 5.01 hereof; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all obligations then due and payable by the Issuers under this Indenture or the Notes shall have been paid in full.
Section 5.05 Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.
Section 5.06 Release of Guarantees.
Each Guarantee by a Guarantor will be automatically and unconditionally released and discharged upon:
(1)(a) any sale, exchange or transfer (by merger or otherwise) of (i) the Capital Stock of such Guarantor, after which the applicable Guarantor is no longer a Subsidiary, or (ii) all or substantially all the assets of such Guarantor, in each case, to a Person that is not the Issuers or a Guarantor, if such sale, exchange or transfer is made in compliance with the applicable provisions of this Indenture, and in each case, provided that all Guarantees and other obligations of such Guarantor in respect of the Existing Senior Notes or other Capital Markets Indebtedness of the Issuers terminate upon consummation of such transaction;
(b) the release or discharge of the Guarantee by such Guarantor of all its indebtedness under the Existing Senior Notes and/or other Capital Markets Indebtedness of the Issuers that resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such Guarantee;
(c) the first date when no Existing Senior Notes or other Capital Markets Indebtedness of the Issuers are outstanding or such Guarantor is released from all of its obligations as a guarantor under the Existing Senior Notes and such other Capital Markets Indebtedness, if any;
(d) the Issuers’ obligations under this Indenture and the Notes are discharged in accordance with the terms of this Indenture;
(e) all remaining obligations to make payments or deliver other consideration with respect to all Notes are discharged in full after the same has become due; or
(f) the liquidation or dissolution of such Guarantor, provided that no Default or Event of Default has occurred and is continuing; and
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(2) the Issuers delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
Section 5.07 Future Guarantors.
If any Subsidiary of PBF Holding, other than PBF Finance, guarantees any Existing Senior Notes or any other Capital Markets Indebtedness of the Issuers, then the Issuers shall, as soon as reasonably practicable but no later than 30 calendar days after such Subsidiary guarantees any such indebtedness, cause such Subsidiary to execute an amended or supplemental indenture causing such Subsidiary to become a Guarantor under this Indenture.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. The following events shall be “Events of Default” with respect to the Notes:
(a) default in the payment of principal of any Note when due (including the Fundamental Change Repurchase Price or the Redemption Price) and payable on the Maturity Date, upon any required repurchase, upon a Redemption, upon declaration of acceleration or otherwise;
(b) default in any payment of Special Interest, if any, on any Note when due and payable, and the default continues for a period of 30 days;
(c) the Issuers’ failure to comply with their obligation to exchange the Notes in accordance with this Indenture upon exercise of a Holder’s exchange right and such failure continues for five days;
(d) the Issuers’ failure to issue a Fundamental Change Company Notice in accordance with Section 15.02(c), a Make-Whole Fundamental Change Company Notice in accordance with Section 14.03(a) or a Specified Corporate Event Notice in accordance with Section 14.01(b)(ii), in each case, when due, and such failure continues for five days;
(e) the failure of PBF Holding or PBF Energy to comply with their respective obligations under Article 11;
(f) the failure by PBF Energy, either Issuer or any Guarantor for 60 days after receipt of written notice given by the Trustee or the Holders of not less than 25% in principal amount of the Notes then outstanding to comply with any of its obligations, covenants or agreements (other than a Default referred to in clauses (a), (b), (c), (d) or (e) of this Section 6.01 contained in the Indenture or the Notes);
(g) 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 PBF Holding or any of its Subsidiaries or the payment of which is guaranteed by PBF Holding or any of its Subsidiaries, other than indebtedness owed to PBF Holding or any of its Subsidiaries, whether such indebtedness or guarantee now exists or is created after the Issue Date, if both:
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(i) such default either (x) results from the failure to pay any principal of such indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or (y) relates to an obligation other than the obligation to pay principal of any such indebtedness at its stated final maturity and results in the holder or holders of such indebtedness causing such indebtedness to become due prior to its stated maturity; and
(ii) the principal amount of such indebtedness, together with the principal amount of any other such indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate $100.0 million or more at any one time outstanding;
provided, however, that if, prior to any acceleration of the Notes, (i) any such payment default is cured or waived, (ii) any such acceleration is rescinded, or (iii) such indebtedness is repaid during the 30 Business Day period commencing upon the end of any applicable grace period for such payment default or the occurrence of such acceleration, as the case may be, any Default or Event of Default (but not any acceleration of the Notes) caused by such payment default or acceleration shall be automatically rescinded, so long as such rescission does not conflict with any judgment, decree or applicable law;
(h) failure by any Issuer or any Significant Subsidiary (or any group of Subsidiaries that together would constitute a Significant Subsidiary) to pay final judgments aggregating in excess of $100.0 million (other than any judgments covered by indemnities from indemnitors with corporate investment grade ratings or covered, directly or indirectly, by insurance policies issued by reputable and creditworthy insurance companies as determined in good faith by PBF Holding, in each case so long as such indemnitor or insurance company has been provided notice of the judgment and has not in writing disputed responsibility therefor or disclaimed coverage) which judgments are not paid, discharged or stayed for a period of more than 60 days after such judgments have become final and, in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed;
(i) PBF Energy, PBF Holding or any of PBF Holding’s Significant Subsidiaries or any group of PBF Holding’s Subsidiaries that, taken together (as of the latest audited consolidated financial statements for PBF Holding and its Subsidiaries), would constitute a Significant Subsidiary of PBF Holding, pursuant to or within the meaning of any Bankruptcy Law: (1) commences proceedings to be adjudicated bankrupt or insolvent; (2) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law; (3) consents to the appointment of a receiver, liquidator, assignee, trustee or other similar official of it or for all or substantially all of its property; or (4) makes a general assignment for the benefit of its creditors;
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(j) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against PBF Energy, PBF Holding or any of PBF Holding’s Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries of PBF Holding that, taken together (as of the latest audited consolidated financial statements for the Issuers and their Subsidiaries), would constitute a Significant Subsidiary, or for all or substantially all of the property of PBF Energy, the Issuers or any Subsidiary of PBF Holding that is a Significant Subsidiary or any group of Subsidiaries of PBF Holding that is a Significant Subsidiary or any group of Subsidiaries of PBF Holding that, taken together, would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;
(ii) appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of PBF Energy, PBF Holding or any of PBF Holding’s Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries of PBF Holding that, taken together (as of the latest audited consolidated financial statements for the Issuers and their Subsidiaries), would constitute a Significant Subsidiary, or for all or substantially all of the property of PBF Energy, PBF Holding or any Subsidiary of PBF Holding that is a Significant Subsidiary or any group of Subsidiaries of PBF Holding that, taken together (as of the latest audited consolidated financial statements for the Issuers and their Subsidiaries), would constitute a Significant Subsidiary; or
(iii) orders the liquidation of PBF Energy, PBF Holding or any Subsidiary of PBF Holding that is a Significant Subsidiary or any group of Subsidiaries of PBF Holding that, taken together (as of the latest audited consolidated financial statements for the Issuers and their Subsidiaries), would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days; or
(k) the Guarantee of any Significant Subsidiary shall for any reason cease to be in full force and effect or be declared null and void or any responsible officer of any Guarantor that is a Significant Subsidiary, as the case may be, denies that it has any further liability under its Guarantee or gives notice to such effect, other than by reason of the termination of this Indenture or the release of any such Guarantee in accordance with this Indenture;
Section 6.02 Acceleration. In case one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to PBF Energy or the Issuers), either the Trustee by notice in writing to the Issuers, or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, by notice in writing to the Issuers and the Trustee, may declare 100% of the principal of, and accrued and unpaid Special Interest, if any, on, all the Notes to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable. If an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to PBF Energy or the Issuers occurs and is continuing, 100% of the principal of, and accrued and unpaid Special Interest, if any, on, all Notes shall become and shall automatically be immediately due and payable. In addition, the Trustee shall have no obligation to accelerate the Notes if in the judgment of the Trustee, acceleration is not in the interest of the Holders of the Notes.
For the avoidance of doubt, and without limiting the manner in which any Default or Event of Default can be cured,
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(i) a Default consisting of a failure to send a notice in accordance with the terms of this Indenture shall be cured upon the sending of such notice;
(ii) a Default in making any payment on (or delivering any other consideration in respect of) any Note shall be cured upon the delivery, in accordance with this Indenture, of such payment (or other consideration) together, if applicable, with Default Interest thereon; and
(iii) a Default that is (or, after notice, passage of time or both, would be) a Reporting Event of Default shall be cured upon the filing of the relevant report or reports giving rise to such Default (it being understood that any report filed with the Commission through the EDGAR system, or posted on PBF Holding’s website, as applicable, shall be deemed to be filed with the Trustee at the time such report is so filed or posted);
In addition, for the avoidance of doubt, (i) if a Default that is not an Event of Default is cured or waived before such Default would have constituted an Event of Default, then no Event of Default shall result from such Default; (ii) the cure of any Event of Default shall not affect any acceleration that has occurred before such cure; and (iii) the cure of any Reporting Event of Default shall not affect the accrual of any Special Interest that accrues prior to the time of such cure. In addition, if an Event of Default is cured or waived before any related notice of acceleration is delivered, such Event of Default shall be deemed cured and the Notes shall not be subject to acceleration on account of such Event of Default. Nothing in the immediately preceding two sentences shall constitute a waiver of, or in any way limit, the right of the Trustee or any Holder to institute suit for any damages incurred as a result of any Default, even if such Default is subsequently cured.
In the event of any Event of Default specified in clause (g) above, such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose: (1) the indebtedness or guarantee that is the basis for such Event of Default has been discharged; or (2) holders thereof have rescinded or waived the acceleration, notice of action (as the case may be) giving rise to such Event of Default; or (3) the Default that is the basis for such Event of Default has been cured.
Section 6.03 Special Interest for Reporting Event of Default.
(a) Notwithstanding anything in this Indenture or in the Notes to the contrary, to the extent the Issuers elect, the sole remedy for an Event of Default relating to the failure of PBF Energy or PBF Holding to comply with their reporting obligations as set forth in Section 4.06(b) (a “Reporting Event of Default”) shall, after the occurrence of such Reporting Event of Default, consist exclusively of the right to receive Special Interest on the Notes from the Issuers (subject to Section 4.06(f) and Section 6.03(b)) at a rate equal to:
(i) 0.25% per annum of the principal amount of the Notes outstanding for each day during the period beginning on, and including, the date on which such Event of Default first occurred and ending on the earlier of (x) the date on which such Event of Default is cured or validly waived and (y) the 180th day immediately following, and including, the date on which such Event of Default first occurred; and
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(ii) if such Reporting Event of Default has not been cured or validly waived prior to the 181st day immediately following, and including, the date on which such Reporting Event of Default first occurred, 0.50% per annum of the principal amount of the Notes outstanding for each day during the period beginning on, and including, the 181st day immediately following, and including, the date on which such Reporting Event of Default first occurred and ending on the earlier of (x) the date on which such Reporting Event of Default is cured or validly waived and (y) the 360th day immediately following, and including, the date on which such Reporting Event of Default first occurred.
(b) Any Special Interest payable pursuant to Section 6.03(a) above shall be in addition to any Registration Default Special Interest that may accrue pursuant to Section 4.06(d). Notwithstanding anything in this Indenture to the contrary, in no event, however, shall Special Interest accrue on any day (taking into consideration any Special Interest payable pursuant to Section 6.03(a) above, together with Registration Default Special Interest payable pursuant to Section 4.06(d)) at a rate in excess of 0.50% per annum, regardless of the number of events or circumstances giving rise to the requirement to pay such Special Interest.
(c) If the Issuers elect to pay Special Interest pursuant to Section 6.03(a), such Special Interest shall be payable in the same manner and on the same dates as the stated interest payable on the Notes and will accrue on all Notes then outstanding from, and including, the date on which the Reporting Event of Default relating to the failure of PBF Energy or PBF Holding to comply with their reporting obligations as set forth in Section 4.06(b) first occurs to, but not including, the 361st day thereafter (or such earlier date on which such Reporting Event of Default is cured or waived by the Holders of a majority in principal amount of the Notes then outstanding). On the 361st day after such Reporting Event of Default (if such Reporting Event of Default is not cured or waived prior to such 361st day), such Special Interest will cease to accrue and the Notes will be subject to acceleration as provided in Section 6.02. In the event the Issuers do not elect to pay Special Interest following a Reporting Event of Default in accordance with this Section 6.03, or the Issuers have elected to make such payment but do not pay the Special Interest when due, the Notes shall immediately be subject to acceleration as provided in Section 6.02. For the avoidance of doubt, the provisions of this Section 6.03 shall not affect the rights of Holders in the event of the occurrence of any other Event of Default.
(d) In order to elect to pay Special Interest as the sole remedy during the first 360 days after the occurrence of a Reporting Event of Default relating to the failure of PBF Energy or PBF Holding to comply with their reporting obligations as set forth in Section 4.06(b), the Issuers must notify all Holders of the Notes, the Trustee and the Paying Agent (if other than the Trustee) in writing of such election on or before the Close of Business on the date on which such Reporting Event of Default first occurs. Upon the Issuers’ failure to timely give such notice or pay Special Interest, the Notes shall be immediately subject to acceleration as provided in Section 6.02.
Section 6.04 Payments of Notes on Default; Suit Therefor. If an Event of Default described in clause (a), (b) or (c) of Section 6.01 shall have occurred and the Notes have become due and payable pursuant to Section 6.02, the Issuers shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable on the Notes for principal (including the Redemption Price or the Fundamental Change Repurchase Price, if applicable), satisfaction of the Exchange
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Obligation with respect to all Notes that have been exchanged, and interest, if any, with (to the extent that payment of such interest shall be legally enforceable) interest on any such overdue amounts, at the rate borne by the Notes, and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.06. If the Issuers shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuers or any other obligor upon the Notes and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Issuers or any other obligor upon the Notes, wherever situated.
In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Issuers under Bankruptcy Law, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuers, or the property of the Issuers, or in the event of any other judicial proceedings relative to the Issuers, or to the creditors or property of the Issuers, the Trustee, irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and unpaid Special Interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem 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 of the Holders allowed in such judicial proceedings relative to the Issuers, its or their creditors, or its or their property, and to collect and receive any monies or other property payable, issuable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee in respect of claims of the Trustee, as administrative expenses, 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 it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees and expenses, and including any other amounts due to the Trustee under Section 7.06, incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings 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, monies, securities and other property that the Holders of the Notes may be entitled to receive in such proceedings, 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 such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
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All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any such proceedings.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any waiver, rescission or annulment pursuant to Section 6.09 or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Issuers, the Holders, and the Trustee shall, subject to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Issuers, the Holders, and the Trustee shall continue as though no such proceeding had been instituted.
Section 6.05 Application of Monies Collected by Trustee. Any monies or property collected by the Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies and property, upon presentation of the several Notes, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: to the payment of all amounts due the Trustee in all of its capacities under this Indenture, including its agents and counsel under Section 7.06;
SECOND: to the payment of the amounts then due and unpaid for principal of, the Redemption Price (if applicable) and the Fundamental Change Repurchase Price (if applicable) of, and satisfaction of the Exchange Obligation with respect to all Notes that have been exchanged, and interest on the Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes; and
THIRD: to the Issuers.
Section 6.06 Proceedings by Holders. Except to enforce the right to receive payment of principal (including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price) or Special Interest, if any, when due, or the right to receive payment, issuance or delivery of the consideration due upon exchange of any Note, no Holder of any Note shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy with respect to this Indenture, the Notes or the Guarantees unless:
(a) such Holder has previously given the Trustee written notice that an Event of Default is continuing;
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(b) the Holders of at least 30% in principal amount of the then outstanding Notes have requested the Trustee in writing to pursue the remedy;
(c) such Holders have offered, and if requested, provided the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of such security or indemnity; and
(e) the Holders of a majority in principal amount of the then outstanding Notes have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder, it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such use prejudices the rights of another Holder or obtains a preference or priority over another Holder.
Section 6.07 Proceedings by Trustee. In case of an Event of Default, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 6.08 Remedies Cumulative and Continuing. Except as provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section 6.09 Direction of Proceedings and Waiver of Defaults by Majority of Holders.
(a) Subject to the Trustee’s rights to receive security or indemnity from the relevant Holders as described herein, the Holders of a majority of the aggregate principal amount of the Notes at the time outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes; provided, however, that (i) such direction shall not be in conflict with any rule of law or with this Indenture, and (ii) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may refuse to follow any direction that conflicts with any rule of law or with this Indenture, it determines is unduly prejudicial to the rights of any other Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such directions are unduly prejudicial to such Holders) or that would involve the Trustee in personal liability.
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(b) The Holders of a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any past Default or Event of Default hereunder and rescind any acceleration with respect to the Notes and its consequences hereunder except:
(i) a default in the payment of the principal (including any Redemption Price and any Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid Special Interest, if any, on the Notes;
(ii) a failure by the Issuers to deliver the consideration due upon exchange of the Notes; or
(iii) with respect to a Default or Event of Default in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended without the consent of each affected Holder;
provided that, in the case of the rescission of any acceleration with respect to the Notes, (1) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default (other than the nonpayment of the principal of and interest on the Notes that have become due solely by such declaration of acceleration) have been cured or waived and all amounts owing to the Trustee have been paid.
Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 6.10 Notice of Defaults. If a Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee (as provided in Section 7.02(j)), the Trustee shall send to all Holders as the names and addresses of such Holders appear upon the Note Register notice of such Default within 90 days after it occurs or, if it is not actually known to a Responsible Officer of the Trustee at such time, promptly (and in any event within ten (10) Business Days) after it becomes actually known to a Responsible Officer. Except in the case of a Default in the payment of principal of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid Special Interest, if any, on any Note or a Default in the payment, issuance or delivery of the consideration due upon exchange, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
Section 6.11 Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable
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attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section 6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 25% in principal amount of the Notes at the time outstanding, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (including, but not limited to, the Redemption Price and the Fundamental Change Repurchase Price with respect to the Notes being redeemed or repurchased as provided in this Indenture) or accrued and unpaid Special Interest, if any, on any Note on or after the due date expressed or provided for in such Note or to any suit for the enforcement of the payment, issuance or delivery of consideration due upon exchange.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Duties and Responsibilities of Trustee.
(a) Prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee has written notice or actual knowledge and after the curing or waiving of all Events of Default that may have occurred:
(i) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of gross negligence or willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any such certificates and opinions, including mathematical calculations or other facts stated therein).
(b) In the event an Event of Default has occurred and is continuing under this Indenture of which a Responsible Officer has written notice or actual knowledge, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the effect of subsection (a) of this Section;
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(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written direction of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding determined as provided in Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its 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 against such risk or liability is not reasonably assured to it.
(d) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 7.01.
Section 7.02 Certain Rights of the Trustee.
(a) The Trustee may conclusively rely and shall be fully protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, note, coupon or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuers mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Issuers;
(c) the Trustee may consult with counsel of its selection and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled, at a reasonable time on any Business Day, to examine the books, records and premises of the Issuers, personally or by agent or attorney at the expense of the Issuers and shall incur no liability of any kind by reason of such inquiry or investigation;
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(e) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through duly authorized agents, custodians, nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, custodian, nominee or attorney appointed by it with due care hereunder;
(f) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(g) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(h) the Trustee may request that the Issuers deliver a certificate setting forth the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture;
(i) in no event shall the Trustee be liable for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) the Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible Officer shall have actual written knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to a Responsible Officer of the Trustee by the Issuers or by any Holder of the Notes at the Corporate Trust Office of the Trustee and such notice references the Notes and/or this Indenture;
(k) the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Issuers or any Paying Agent (if other than the Trustee) or any records maintained by any co-Note Registrar with respect to the Notes;
(l) if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless such Responsible Officer of the Trustee had actual knowledge of such event;
(m) in the absence of written investment direction from the Issuers, all cash received by the Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses, fees, taxes or other charges incurred thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure of the party directing such investments prior to its maturity date or the failure of the party directing such investment to provide timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written investment direction from the Issuers;
(n) the rights and protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
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(o) subject to this Article 7, if an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered, and, if requested, provided to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability and expense which might be incurred by it in compliance with such request or direction;
(p) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(q) under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes; and
(r) The Issuers agree that (i) if reasonably requested by U.S. Bank Trust Company, National Association in any of its capacities hereunder (for purposes of this paragraph, “Trustee”) and required by FATCA, in relation to a payment made under this Indenture and the Notes issued hereunder, the Issuers will provide such information if and to the extent that (A) such information is reasonably necessary for the Trustee to determine that it is in compliance with FATCA as relates to the payments made under this Indenture and the Notes issued hereunder and (B) such information is available to the Issuers using its commercially reasonable efforts, is with regard to the Issuers and their Subsidiaries and relates to the requirements of FATCA that are actually imposed upon such requesting Trustee; provided, however, that clause (i) shall apply only with respect to payments made with respect to Certificated Notes and the Issuers shall not have any obligation to provide any such information requested pursuant to clause (i) if unrelated to a payment made with respect to Certificated Notes or if the Issuers or any of its Subsidiaries is prohibited legally from disclosing such information, and (ii) the Trustee shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with FATCA for which the Trustee shall have no liability and shall have no obligation to gross-up any payment under this Indenture or to pay any additional amount as a result of such FATCA withholding tax.
(s) The Trustee shall have no obligation to monitor or enforce the terms of the Registration Rights Agreement.
Section 7.03 No Responsibility for Recitals, Etc. The recitals contained herein and in the Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of the Issuers, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Issuers of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the provisions of this Indenture. The Trustee shall have no responsibility or liability with respect to any information, statement or recital in the Offering Memorandum or other disclosure material prepared or distributed with respect to the issuance of the Notes.
Section 7.04 Trustee, Paying Agents, Exchange Agents or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Exchange Agent, the Custodian or Note Registrar, in its individual or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Exchange Agent, Custodian or Note Registrar.
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Section 7.05 Monies To Be Held in Trust. All monies received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law or as expressly provided herein. The Trustee shall be under no liability for interest on any money received by it hereunder except as may be agreed from time to time by the Issuers and the Trustee.
Section 7.06 Compensation and Expenses of Trustee. The Issuers and the Guarantors, jointly and severally, covenant and agree to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in writing between the Trustee and the Issuers, and the Issuers will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any capacity hereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by the Trustee’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. The Issuers and the Guarantors, jointly and severally, shall indemnify the Trustee (which for purposes of this Section 7.06 shall include its officers, directors, employees and agents) in any capacity under this Indenture and any other document or transaction entered into in connection herewith and its agents and any authenticating agent for, and to hold them harmless against, any loss, claim, damage, liability or expense (including court costs) incurred without negligence or willful misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction) on the part of the Trustee, its officers, directors, agents or employees, or such agent or authenticating agent, as the case may be, and arising out of or in connection with the acceptance or administration of this Indenture or in any other capacity hereunder, including the costs and expenses of defending themselves against any claim (whether asserted by the Issuers, a Holder or any other Person) or liability in connection with exercise or performance of any of their powers or duties hereunder or of enforcing this Indenture against the Issuers and the Guarantors (including this Section 7.06). The obligations of the Issuers and the Guarantors under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a lien to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee, except, subject to the effect of Section 6.05, funds held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Issuers. The obligations of the Issuers and the Guarantors under this Section 7.06 shall survive the satisfaction and discharge of this Indenture, final payment of the Notes and the earlier resignation or removal of the Trustee. The Issuers need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The indemnification provided in this Section 7.06 shall extend to the officers, directors, agents and employees of the Trustee.
Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 6.01(i) or Section 6.01(j) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.
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Section 7.07 Officer’s Certificate as Evidence. Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct the part of the Trustee, as determined by a final, non-appealable judgment of a court of competent jurisdiction, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence or willful misconduct on the part of the Trustee, as determined by a final, non-appealable judgment of a court of competent jurisdiction, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section 7.08, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article 7.
Section 7.09 Resignation or Removal of Trustee. The Trustee may at any time resign by giving written notice of such resignation to the Issuers and by mailing notice thereof to the Holders at their addresses as they shall appear on the Note Register. Upon receiving such notice of resignation, the Issuers shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of resignation to the Holders, the resigning Trustee may, at the expense of the Issuers, upon ten Business Days’ notice to the Issuers and the Holders, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months may, subject to the provisions of Section 7.11, on behalf of itself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(a) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 7.13 within a reasonable time after written request therefor by the Issuers or by any Holder who has been a bona fide Holder of a Note or Notes for at least six (6) months;
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after written request therefor by the Issuers or by any such Holder, or
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(iii) the Trustee shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Issuers may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 7.11, any Holder who has been a bona fide holder of a Note or Notes for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(b) The Holders of a majority in aggregate principal amount of the Notes at the time outstanding may at any time remove the Trustee and nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten days after notice to the Issuers of such nomination the Issuers object thereto. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after removal of the Trustee by the Holders, the Trustee may, at the expense of the Issuers, upon ten Business Days’ notice to the Issuers and the Holders, petition any court of competent jurisdiction for the appointment of a successor trustee.
(c) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09 shall become effective upon (i) payment of all fees and expenses owing to the Trustee and (ii) acceptance of appointment by the successor trustee as provided in Section 7.10.
Section 7.10 Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to the Issuers and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Issuers or of the successor trustee, the predecessor trustee shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Issuers shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by such trustee as such pursuant to this Indenture, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under the provisions of Section 7.08.
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Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each of the Issuers and the successor trustee, at the written direction and at the expense of the Issuers shall send or cause to be sent notice of the succession of such trustee hereunder to the Holders at their addresses as they shall appear on the Note Register. If the Issuers fail to mail such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Issuers.
Section 7.11 Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that in the case of any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee such corporation or other entity shall be eligible under the provisions of Section 7.08.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases such certificates of authentication shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of authentication of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 7.12 Trustee’s Application for Instructions from the Issuers. Any application by the Trustee for written instructions from the Issuers (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than ten Business Days after the date any Officer actually receives such application, unless any such Officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.
Section 7.13 Conflicting Interests of Trustee. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of this Indenture.
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Section 7.14 Limitation on Trustee’s Liability. Except as provided in this Article, in accepting the trusts hereby created, the entities acting as Trustee are acting solely as Trustee hereunder and not in their individual capacity and, except as provided in this Article, all Persons having any claim against the Trustee by reason of the transactions contemplated by this Indenture or any Note shall look only to the Issuers for payment or satisfaction thereof.
ARTICLE 8
CONCERNING THE HOLDERS
Section 8.01 Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (i) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (ii) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held, or (iii) by a combination of such instrument or instruments and any such record of such a meeting of Holders. Whenever the Issuers or the Trustee solicits the taking of any action by the Holders of the Notes, the Issuers or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining Holders entitled to take such action. The record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such action.
Section 8.02 Proof of Execution by Holders. Subject to the provisions of Section 8.01 and Section 8.02, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar.
Section 8.03 Who Are Deemed Absolute Owners. The Issuers, the Trustee, any authenticating agent, any Paying Agent, any Exchange Agent and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Issuers or any Note Registrar) for the purpose of receiving payment of or on account of the principal of and (subject to Section 2.03) accrued and unpaid Special Interest, if any, on such Note, for exchange of such Note and for all other purposes; and neither the Issuers nor the Trustee nor any Paying Agent nor any Exchange Agent nor any Note Registrar shall be affected by any notice to the contrary. The sole registered holder of a Global Note shall be the Depositary or its nominee. All such payments or deliveries so made to any Holder, or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid, issued or delivered, effectual to satisfy and discharge the liability for monies payable or shares issuable or deliverable upon any such Note. Notwithstanding anything to the contrary in this Indenture or the Notes following an Event of Default, any holder of a beneficial interest in a Global Note may directly enforce against the Issuers, without the consent, solicitation, proxy, authorization or any other action of the Depositary or any other Person, such holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with the provisions of this Indenture.
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Section 8.04 Issuers-Owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Issuers or by any Affiliate of the Issuers shall be disregarded (from both the numerator and the denominator) and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action only Notes that a Responsible Officer actually knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee is not the Issuers or any Affiliate of the Issuers. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Issuers shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Notes, if any, known by the Issuers to be owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination.
Section 8.05 Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.
ARTICLE 9
[RESERVED]
ARTICLE 10
SUPPLEMENTAL INDENTURES
Section 10.01 Supplemental Indentures Without Consent of Holders. Notwithstanding Section 10.02, without the consent of any Holder, the Issuers, PBF Energy, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes and the Guarantees to:
(a) cure any ambiguity, omission, defect or inconsistency in this Indenture, the Notes or the Guarantees;
(b) provide for the assumption by a successor of (i) the Issuers’ obligations under this Indenture and the Notes, (ii) PBF Energy’s obligations under this Indenture relating to the exchange features and Specified Corporate Events or under the Registration Rights Agreement, or (iii) any Guarantor’s obligations under this Indenture, the Notes and the Guarantees, in each case in accordance with Article 11;
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(c) add additional Guarantees with respect to the Notes;
(d) release a Guarantor from its Guarantee when permitted or required by this Indenture;
(e) secure the Notes;
(f) add to the covenants or Events of Default that the Board of Directors of PBF Holding or a committee thereof considers to be for the benefit of the Holders or make changes that would provide additional rights to Holders or surrender any right or power conferred upon PBF Holding or any Guarantor;
(g) make any change that does not adversely affect the rights of any Holder in any material respect, as determined by the Board of Directors of PBF Holding or a committee thereof and evidenced by a Board Resolution delivered to the Trustee;
(h) in connection with any Specified Corporate Event, provide that the Notes are exchangeable for Reference Property, subject to Section 14.02, and make certain related changes to the terms of this Indenture, the Notes and the Guarantees to the extent expressly required by this Indenture;
(i) evidence and provide for the acceptance of an appointment under this Indenture of a successor Trustee; provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture as set forth in an Officer’s Certificate;
(j) conform the provisions of this Indenture, the Notes and the Guarantees to the Description of Notes section in the Offering Memorandum;
(k) provide for the issuance of additional Notes in accordance with Section 2.10(a); or
(l) to comply with applicable stock exchange rules.
The Trustee is hereby authorized to join with the Issuers in the execution of any such amendment, supplement or waiver, to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may in its discretion, enter into any amendment, supplement or waiver that adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 10.02 Supplemental Indentures with Consent of Holders. Except as provided above in Section 10.01 and below in this Section 10.02, the Issuers, PBF Energy, the Guarantors and the Trustee may from time to time and at any time amend or supplement this Indenture, the Notes and the Guarantees with the consent (evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), and any existing Default or Event of Default (other than (i) a Default or Event of Default in the payment of the principal (including any Redemption Price and any Fundamental Change
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Repurchase Price, if applicable) of, or accrued and unpaid Special Interest, if any, on the Notes, except a payment default resulting from an acceleration that has been rescinded, and (ii) a Default or Event of Default as a result of a failure by the Issuers to deliver the consideration due upon exchange of the Notes) or compliance with any provision of this Indenture, the Notes or the Guarantees may be waived with the consent (evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes); provided, however, that, without the consent of each Holder of an outstanding Note affected, no such amendment shall:
(a) reduce the amount of Notes whose Holders must consent to an amendment;
(b) reduce the rate of, or extend the stated time for payment of, interest on any Note;
(c) reduce the principal of, or change the Maturity Date of, any Note;
(d) reduce the amount of principal payable upon acceleration of the maturity of the Notes;
(e) impair or adversely affect the right of Holders to exchange Notes or otherwise modify the provisions with respect to exchange, or reduce the Exchange Rate (subject to such modifications as are required under this Indenture);
(f) reduce the Redemption Price or Fundamental Change Repurchase Price of any Note or amend or modify in any manner adverse to the Holders the Issuers’ obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;
(g) change the ranking of the Notes or the Guarantees;
(h) except as expressly permitted by this Indenture, modify the Guarantees of any Significant Subsidiary in any manner adverse to the holders of the Notes;
(i) make any Note payable in a money, or at a place of payment, other than that stated in the Note;
(j) amend the right of any Holder to institute suit for the enforcement of any payment of principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, accrued and unpaid Special Interest, if any, on, and consideration due upon exchange of, its Notes, on or after the respective due dates expressed or provided for in this Indenture; or
(k) make any change in this Article 10 or in the waiver provisions (including in Section 6.09), in each case, that requires each Holder’s consent.
Upon the written request of the Issuers, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject to Section 10.05, the Trustee shall join with the Issuers in the execution of such amendment, supplement or waiver unless such amendment, supplement or waiver adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amendment, supplement or waiver.
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Holders do not need under this Section 10.02 to approve the particular form of any proposed amendment, supplement or waiver of this Indenture. It shall be sufficient if such Holders approve the substance thereof. After any such amendment, supplement or waiver becomes effective, the Issuers shall send to the Holders a notice (with a copy to the Trustee) briefly describing such amendment, supplement or waiver. However, the failure to give such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of the amendment, supplement or waiver.
Section 10.03 Effect of Amendment, Supplement and Waiver. Upon the execution of any amendment, supplement or waiver of this Indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuers and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such amendment or supplement shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 10.04 Notation on Notes. Notes authenticated and delivered after the execution of any amendment, supplement or waiver to this Indenture pursuant to the provisions of this Article 10 may, at the Issuers’ expense, bear a notation in form approved by the Trustee as to any matter provided for in such amendment, supplement or waiver. If the Issuers or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such amendment, supplement or waiver may, at the Issuers’ expense, be prepared and executed by the Issuers, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 17.11) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding. 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 10.05 Evidence of Compliance of Amendment, Supplement or Waiver To Be Furnished To Trustee.
In addition to the documents required by Section 17.06, the Trustee shall receive and may rely on an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any amendment, supplement or waiver to this Indenture executed pursuant hereto complies with the requirements of this Article 10 and is permitted or authorized by this Indenture and is the legal, valid and binding obligation of the Issuers, enforceable in accordance with its terms.
Section 10.06 Restrictions Regarding Canada.
Notwithstanding any other provision of the Indenture or the Notes, no holder that is located or resident in Canada will be entitled to exchange any of its Notes for shares of common stock unless it has first provided to the Issuers, a representation letter in the form approved by the Issuers and available from the Issuers establishing its eligibility to acquire shares of common stock under applicable provisions of Canadian securities laws and providing the issuers with the information necessary to report the exempt distribution of those shares of common stock to the applicable Canadian securities regulatory authority.
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Each Holder that exercises its exchange rights under the Notes without first providing a representation letter to the Issuers shall be deemed to have represented and warranted to the Issuers that it is not located or resident in any province or territory of Canada.
ARTICLE 11
CONSOLIDATION, MERGER AND SALE
Section 11.01 PBF Energy May Consolidate, Etc. on Certain Terms.
(a) PBF Energy shall not consolidate or merge with or into or wind up into (whether or not PBF Energy is the surviving corporation), or 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 any Person (a “PBF Energy Business Combination Event”), unless:
(i) PBF Energy is the surviving company or the resulting, surviving or transferee Person (if not PBF Energy) is a Qualified Successor Entity (such Qualified Successor Entity, the “Successor Entity”) organized and existing under the laws of the United States of America, any State thereof, the District of Columbia or any territory thereof; and
(ii) immediately after such transaction, no Default exists.
(b) The Successor Entity shall succeed to, and be substituted for PBF Energy, as the case may be, under this Indenture and the Registration Rights Agreement. Notwithstanding the foregoing Section 11.01(a)(ii), PBF Energy may merge with an Affiliate of PBF Energy solely for the purpose of incorporating or reincorporating PBF Energy in any state of the United States or the District of Columbia.
Section 11.02 PBF Holding May Consolidate, Etc. on Certain Terms. PBF Holding shall not consolidate or merge with or into or wind up into (whether or not PBF Holding is the surviving corporation), or 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 any Person (a “PBF Holding Business Combination Event”), unless:
(i) PBF Holding is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than PBF Holding) or to which such PBF Holding Business Combination Event will have been made is a Person organized or existing under the laws of the jurisdiction of organization of PBF Holding or the laws of the United States, any State thereof or the District of Columbia (such Person, as the case may be, being herein called the “Successor Company”); provided, that in the case where the surviving Person is not a corporation, a co-obligor on the Notes is a corporation;
(ii) The Successor Company, if other than PBF Holding, expressly assumes all the obligations of PBF Holding under the Notes pursuant to supplemental indentures;
(iii) immediately after such transaction, no Event of Default exists;
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(iv) [Reserved];
(v) Each Guarantor, unless it is the other party to the transactions described above under this Section 11.02, in which case Section 11.04(i)(b) shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under the Indenture and the Notes; and
(vi) PBF Holding (or, if applicable, the Successor Company) shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such PBF Holding Business Combination Event and such supplemental indentures, if any, comply with the Indenture.
The successor company shall succeed to, and be substituted for PBF Holding, as the case may be, under the Indenture, the Guarantees, the Registration Rights Agreement and the Notes, as applicable.
Notwithstanding the foregoing, (1) any Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to PBF Holding, and (2) PBF Holding may merge with an Affiliate of PBF Holding solely for the purpose of incorporating or reincorporating PBF Holding in any State of the United States or the District of Columbia.
Section 11.03 PBF Finance May Consolidate, Etc. on Certain Terms PBF Finance shall not, directly or indirectly, consolidate or merge with or into or wind up into (whether or not PBF Finance is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of PBF Finance’s properties or assets, in one or more related transactions, to any Person (a “PBF Finance Business Combination Event”), unless:
(i) (A) concurrently therewith, a corporate, wholly-owned Subsidiary of PBF Holding organized and existing under the laws of the United States of America, any State thereof, the District of Columbia or any territory thereof (which may be the continuing Person as a result of such transaction) expressly assumes by a supplemental indenture or a supplemental agreement, as applicable, all of the obligations of PBF Finance under the Notes, this Indenture and the Registration Rights Agreement, as the case may be, or (B) after giving effect thereto, at least one obligor on the Notes shall be a corporation organized and existing under the laws of the United States of America, any State thereof, or the District of Columbia;
(ii) immediately after such transaction, no Event of Default exists; and
(iii) PBF Finance shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such PBF Finance Business Combination Event and such supplemental indenture, if any, comply with this Indenture.
For the avoidance of doubt, at any time when PBF Holding or a successor Person is a corporation, PBF Finance may consolidate or merge with or into PBF Holding or any Subsidiary.
Section 11.04 Guarantors May Consolidate, Etc. on Certain Terms.
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Subject to Section 5.06, no Guarantor shall, and PBF Holding shall not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or not the Guarantor is the surviving Person), or sell, assign, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person (a “Guarantor Business Combination Event”) unless:
(i)
(A) such Guarantor is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor, as the case may be, or the laws of the United States, any State thereof or the District of Columbia (such Person, as the case may be, the “Guarantor Successor Entity”);
(B) the Guarantor Successor Entity, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under the Indenture;
(C) immediately after such transaction, no Default exists; and
(D) PBF Holding shall have delivered to the Trustee an Officer’s Certificate and Opinion of Counsel stating that such Guarantor Business Combination Event and such supplemental indentures, if any, comply with the Indenture; or
(ii) the transaction is permitted by the agreements governing the Existing Senior Notes or other Capital Markets Indebtedness of the Issuers outstanding at such time.
Subject to Section 5.06, the Guarantor Successor Entity shall succeed to, and be substituted for, such Guarantor under the Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may (i) merge into or transfer all or part of its properties and assets to another Guarantor or either Issuer, (ii) merge with an Affiliate of PBF Holding solely for the purpose of incorporating or reincorporating the Guarantor in the United States, any State thereof, the District of Columbia or any territory thereof, or (iii) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor.
Section 11.05 Opinion of Counsel and Officer’s Certificate To Be Given to Trustee.
In connection with any business combination event, merger, consolidation, combination or transfer implicated by this Article 11, the Trustee shall not be required to take any action unless it has received an Officer’s Certificate and an Opinion of Counsel, each stating that the transaction, any assumption and any supplemental indenture comply with this Article 11 and, if a supplemental indenture is required, that the Indenture, the Notes and the Guarantees constitute legal, valid and binding obligations of the applicable successor, subject to customary exceptions.
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ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 Indenture and Notes Solely Issuers’ and Guarantors’ Obligations. No recourse for the payment of the principal of or accrued and unpaid Special Interest, if any, on, or the payment, issuance or delivery of consideration due upon Exchange of, any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of PBF Energy, the Issuers or any Guarantor in this Indenture or in any supplemental indenture or in any Note or Guarantee, nor because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, partner, employee, agent, Officer or director or Subsidiary, as such, past, present or future, of PBF Energy, the Issuers or any Guarantor or of any of their respective successor entities, either directly or through PBF Energy, the Issuers, any Guarantor or any of their respective successor entities, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture, the Guarantees and the issue of the Notes.
ARTICLE 13
[INTENTIONALLY OMITTED]
ARTICLE 14
EXCHANGE OF NOTES
Section 14.01 Exchange Privilege.
(a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to exchange all or any portion in an Authorized Denomination of such Note:
(i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the Close of Business on the Business Day immediately preceding October 15, 2031, under the circumstances and during the periods set forth in Section 14.01(b); and
(ii) on or after October 15, 2031, at any time prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date;
in each case, at an initial exchange rate of 10.3306 shares of Common Stock (subject to adjustment as provided in Section 14.04 and, if applicable, Section 14.03, the “Exchange Rate”) per $1,000 principal amount of Notes (subject to the settlement provisions of Section 14.02, the “Exchange Obligation”).
(b) (i) Prior to the Close of Business on the Business Day immediately preceding October 15, 2031, a Holder may surrender all or any portion of its Notes in an Authorized Denomination for exchange at any time during the five Business Day period after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with the procedures and conditions described below in this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price per share of Common Stock and the Exchange Rate on each such Trading Day.
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(A) The Bid Solicitation Agent (if other than the Issuers) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless the Issuers have requested such determination, and the Issuers shall have no obligation to make such request (or, if the Issuers are acting as Bid Solicitation Agent, the Issuers shall have no obligation to determine the Trading Price) unless a Holder of at least $5,000,000 principal amount of Notes requests in writing that the Issuers make such a determination and provides the Issuers with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than 98% of the product of the Last Reported Sale Price per share of Common Stock and the Exchange Rate on such Trading Day. At such time, the Issuers shall instruct the Bid Solicitation Agent (if other than the Issuers) to determine, or if the Issuers are acting as Bid Solicitation Agent, the Issuers shall determine, the Trading Price per $1,000 principal amount of the Notes beginning on the next Trading Day following the receipt of such evidence and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price per share of Common Stock and the Exchange Rate on such Trading Day.
(B) If the Trading Price condition has been met, the Issuers shall promptly so notify the Holders, the Trustee and the Exchange Agent (if other than the Trustee) in writing. If, at any time after the Trading Price condition has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price per share of Common Stock and the Exchange Rate on such Trading Day, the Issuers shall promptly so notify the Holders, the Trustee and the Exchange Agent (if other than the Trustee) in writing.
(C) If the Issuers do not, when it is required to, instruct the Bid Solicitation Agent to (or, if the Issuers are acting as Bid Solicitation Agent, it does not) obtain bids, or if the Issuers give such instruction to the Bid Solicitation Agent and the Bid Solicitation Agent fails to make such determination (or, if the Issuers are acting as Bid Solicitation Agent, it fails to make such determination), then, in either case, the Trading Price per $1,000 principal amount of the Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price per share of Common Stock and the Exchange Rate on each Trading Day of such failure.
(ii) If, prior to the Close of Business on the Business Day immediately preceding October 15, 2031, PBF Energy elects to:
(A) issue to all or substantially all holders of Common Stock any rights, options or warrants (other than any issuance pursuant to a shareholder’s rights agreement or rights plan) entitling them, for a period of not more than 60 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of Common Stock, at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
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(B) distribute to all or substantially all holders of Common Stock assets, securities or rights, options or warrants to purchase securities (in each case, other than any distribution pursuant to a shareholder’s rights agreement or rights plan), which distribution has a per share value, as reasonably determined by PBF Energy, exceeding 10% of the Last Reported Sale Price per share of Common Stock on the Trading Day immediately preceding the date of announcement of such distribution,
then, in either case, the Issuers shall notify all Holders of the Notes, the Trustee and the Exchange Agent (if other than the Trustee) at least 35 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (a “Specified Corporate Event Notice”). Once the Issuers have given such notice, the Holders may surrender all or any portion of their Notes in an Authorized Denomination for exchange at any time until the earlier of (1) the Close of Business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) PBF Energy’s announcement that such issuance or distribution will not take place.
No Holder may exchange any of its Notes pursuant to this Section 14.01(b)(ii) if such Holder otherwise participates in such issuance or distribution, at the same time and upon the same terms as holders of the Common Stock and as a result of holding Notes, without having to exchange its Notes as if such Holder held a number of shares of Common Stock equal to (x) the applicable Exchange Rate multiplied by (y) the number of Notes in the Authorized Denomination held by such Holder.
(iii) If, prior to the Close of Business on the Business Day immediately preceding October 15, 2031:
(A) a transaction or event that constitutes a Fundamental Change occurs;
(B) a transaction or event that constitutes a Make-Whole Fundamental Change occurs; or
(C) PBF Energy is a party to a Specified Corporate Event,
then, in each case, the Holders may surrender all or any portion of their Notes in an Authorized Denomination for exchange at any time from or after the open of business on the Business Day immediately following the day PBF Energy publicly announces such transaction (even if such transaction has not yet occurred) until the Close of Business on the 35th Trading Day immediately following the actual effective date of such transaction or, if such transaction constitutes a Fundamental Change (other than a Fundamental Change for which the Issuers validly invoke the Adequate Cash Exchange Provisions), until the Close of Business on the Business Day immediately preceding the related Fundamental Change Repurchase Date.
The Issuers shall notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) in writing of the effective date of any such transaction as promptly as practicable following the date PBF Energy publicly announces such transaction.
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(iv) Prior to the Close of Business on the Business Day immediately preceding October 15, 2031, for any fiscal quarter commencing after the fiscal quarter ending on September 30, 2026, if the Last Reported Sale Price per share of Common Stock for at least 5 Trading Days (whether or not consecutive) during the first 20 Trading Days of such fiscal quarter exceeds 150% of the Exchange Price on each applicable Trading Day, then a Holder may surrender all or any portion of its Notes in an Authorized Denomination for exchange at its option during the 30 Trading Day period beginning on, and including, the 21st Trading Day of such quarter.
(v) If the Issuers call any Notes for Redemption (whether for Optional Redemption or Cleanup Redemption) pursuant to Section 16.01, Holders may exchange all or any portion of their Notes called for Redemption (and only the Notes called for Redemption) at any time from, and including, the Redemption Notice Date until the Close of Business on the second Scheduled Trading Day immediately preceding the Redemption Date, or, if the Issuers fail to pay the Redemption Price, such later date on which the Issuers pay or duly provide for the Redemption Price, even if the Notes are not otherwise exchangeable at such time.
If the Issuers elect to redeem less than all of the outstanding Notes for an Optional Redemption as described under Section 16.01, and the Holder of any Note, or any owner of a beneficial interest in any Global Note, is reasonably not able to determine, before the 34th Scheduled Trading Day immediately before the relevant Redemption Date, whether such Note or beneficial interest is to be redeemed pursuant to such Optional Redemption, then such Holder or owner shall be entitled to exchange such Note or beneficial interest at any time before the Close of Business on the second Scheduled Trading Day prior to such Redemption Date, unless the Issuers default in the payment of the Redemption Price, in which case such Holder or owner will be entitled to exchange such Note or beneficial interest until the Close of Business on the scheduled trading day immediately preceding the date on which the Redemption Price has been paid or duly provided for, and each such exchange will be deemed to be of a Note called for Optional Redemption.
If the Issuers elect to redeem less than all of the outstanding Notes for an Optional Redemption, Holders of Notes not called for Optional Redemption will not be entitled to exchange such Notes on account of the Notice of Redemption and will not be entitled to an increased Exchange Rate on account of the Notice of Redemption, except in the limited circumstances set forth in the immediately preceding paragraph.
Section 14.02 Exchange Procedure; Settlement Upon Exchange.
(a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon exchange of any Note, the Issuers shall, at their election, pay or issue or deliver, as the case may be, to the exchanging Holder, in full satisfaction of their Exchange Obligation: (i) either cash (the “Cash Settlement”); or (ii) a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (the “Combination Settlement”), as set forth in this Section 14.02. In no event shall the Issuers elect Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes.
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(i) All exchanges for which the relevant Exchange Date occurs on or after October 15, 2031, and all exchanges occurring after the date of the Issuers’ issuance of a Notice of Redemption and prior to the Close of Business on the second Scheduled Trading Day immediately preceding the related Redemption Date, shall be settled using the same Settlement Method (including the same relative proportion of cash and shares of Common Stock). Except for any exchanges for which the relevant Exchange Date occurs on or after October 15, 2031, or after the date of the Issuers’ issuance of a Notice of Redemption and prior to the Close of Business on the second Scheduled Trading Day immediately preceding the related Redemption Date, the Issuers shall use the same Settlement Method for all exchanges with the same Exchange Date, but shall not have any obligation to use the same Settlement Method with respect to exchanges with different Exchange Dates.
(ii) If the Issuers elect a Settlement Method, the Issuers shall deliver notice to Holders, the Trustee and the Exchange Agent of the Settlement Method the Issuers have selected no later than the Close of Business on the VWAP Trading Day immediately following the related Exchange Date (or (i) in the case of any exchanges for which the relevant Exchange Date occurs on or after October 15, 2031, no later than October 15, 2031 or (ii) in the case of any exchanges occurring after the date of issuance of a Notice of Redemption and prior to the Close of Business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of Redemption). If the Issuers call all or any Notes for Redemption and the related Redemption Date is on or after October 15, 2031, then the Settlement Method that the Issuers elect to apply for exchanges with an Exchange Date occurring during the related Redemption period must be the same Settlement Method that applies to all exchanges with an Exchange Date that occurs on or after October 15, 2031. If the Issuers do not timely elect a Settlement Method, the Issuers shall no longer have the right to elect Cash Settlement and the Issuers shall be deemed to have elected Combination Settlement with respect to that Exchange Date, with a Specified Dollar Amount of $1,000. If the Issuers elect Combination Settlement but do not timely specify a Specified Dollar Amount per $1,000 principal amount of Notes, the Specified Dollar Amount will be deemed to be $1,000.
(iii) The Settlement Amount will be computed as follows:
(A) if the Issuers elect Cash Settlement, the Issuers shall pay to the exchanging Holder in respect of each $1,000 principal amount of Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values for each of the 30 consecutive VWAP Trading Days during the related Observation Period; and
(B) if the Issuers elect (or are deemed to have elected) Combination Settlement, the Issuers shall pay and, as applicable, issue or deliver, as the case may be, to the exchanging Holder in respect of each $1,000 principal amount of Notes being exchanged a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 consecutive VWAP Trading Days during the related Observation Period, plus cash in lieu of any fractional shares of Common Stock issuable or deliverable upon exchange.
If more than one Note shall be surrendered for exchange at any one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered.
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(iv) The Issuers may, prior to October 15, 2031, at their option, irrevocably fix any Settlement Method that the Issuers are then permitted to elect for all exchanges for which the relevant Exchange Date occurs subsequent to such notice, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000, or with an ability to continue to set a Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such written notice. Such election must be made by delivering written notice of such election to the Holders, the Trustee and the Exchange Agent. If the Issuers irrevocably fix the Settlement Method to Combination Settlement with an ability to continue to set the Specified Dollar Amount at or above a specified amount (which specified amount shall not be less than $1,000 per $1,000 principal amount of Notes), the Issuers will inform holders exchanging their Notes, the Trustee and the Exchange Agent in writing of such Specified Dollar Amount no later than the relevant Settlement Method election deadline, or, if the Issuers do not timely inform them, the Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth, $1,000 per $1,000 principal amount of Notes. In no event may the Issuers elect Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. No such irrevocable election will affect any Settlement Method theretofore elected or deemed elected. Any such irrevocable election will be effective without amending this Indenture or the Notes, although the Issuers may execute such an amendment at their option. If the Issuers irrevocably fix the Settlement Method, the Issuers or PBF Energy will either post the fixed Settlement Method on their website, issue a press release or disclose the same in a current report on Form 8-K (or any successor form) that is filed or furnished with the Commission.
(v) The Daily Settlement Amounts (if applicable) and the Daily Exchange Values (if applicable) shall be determined by the Issuers promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and, if applicable, the amount of cash payable in lieu of any fractional shares, the Issuers shall notify the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and, if applicable, the amount of cash payable in lieu of fractional shares. The Trustee and the Exchange Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) (i) To exchange a beneficial interest in a Global Note (which exchange is irrevocable), the holder of such beneficial interest must:
(A) comply with the Applicable Procedures for exchanging a beneficial interest in a Global Note;
(B) if required, pay all transfer or similar taxes;
(C) if required, pay funds equal to any Special Interest, if any, payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g); and
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(D) To exchange a Certificated Note, the Holder must:
(E) complete, manually sign and deliver an irrevocable notice to the Exchange Agent as set forth in the Form of Notice of Exchange (or a facsimile thereof) (a “Notice of Exchange”) and such Note to the Exchange Agent;
(F) if required, furnish appropriate endorsements and transfer documents; and
(G) if required, pay funds equal to any interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g).
The Trustee (and if different, the Exchange Agent) shall notify the Issuers of any exchange pursuant to this Article 14 on the Exchange Date for such exchange.
If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for exchange until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and exchange the Notes that are subject to repurchase will terminate at the Close of Business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If the Issuers have designated a Redemption Date pursuant to Section 16.02, a Holder that complies with the requirements for exchange set forth in this Section 14.02(b) shall be deemed to have delivered a notice of its election not to have its Notes so redeemed.
(c) A Note shall be deemed to have been exchanged immediately prior to the Close of Business on the date (the “Exchange Date”) that the Holder has complied with the requirements set forth in Section 14.02(b) above.
Subject to the provisions of Section 14.03(b) and Section 14.07(a), the Issuers shall deliver the consideration due in respect of exchange on the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period.
If any shares of Common Stock are due to exchanging Holders, the Issuers shall cause to be issued or delivered to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuers’ Exchange Obligation.
(d) In case any Certificated Note shall be surrendered for partial exchange, in an Authorized Denomination, the Issuers shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder so surrendered a new Note or Notes in an Authorized Denomination in an aggregate principal amount equal to the unexchanged portion of the surrendered Note, without payment of any service charge by the exchanging Holder but, if required by the Issuers or Trustee, with payment of a sum sufficient to cover any transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange.
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(e) If a Holder submits a Note for exchange, the Issuers shall pay any documentary, stamp or similar issue or transfer tax due on the issuance or delivery of any shares of Common Stock upon exchange of such Note, unless the tax is due because the Holder requests such shares of Common Stock to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax.
(f) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian of the Global Note at the direction of the Trustee, shall make a notation in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Issuers shall notify the Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the Trustee.
(g) Upon exchange of a Note, the exchanging Holder shall not receive any separate cash payment representing accrued and unpaid Special Interest, if any, except as set forth in the paragraph below. The Issuers’ payment or issuance or delivery, as the case may be, of the Settlement Amount upon exchange of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid Special Interest, if any, to, but not including, the relevant Exchange Date. As a result, accrued and unpaid Special Interest, if any, to, but not including, the relevant Exchange Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon an exchange of Notes into a combination of cash and shares of Common Stock, accrued and unpaid Special Interest, if any, shall be deemed to be paid first out of the cash paid upon such exchange.
Notwithstanding the immediately preceding paragraph, if any payment of Special Interest is due in respect of any Special Interest Payment Date, and if Notes are exchanged after the Close of Business on an applicable Special Interest Record Date for the payment of Special Interest, but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes at the Close of Business on such Special Interest Record Date shall receive the full amount of interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the exchange. Notes surrendered for exchange during the period from the Close of Business on any Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of Special Interest, if any, payable on the Notes so exchanged on the corresponding Special Interest Payment Date (regardless of whether the exchanging Holder was the Holder of record on the corresponding Special Interest Record Date); provided that no such payment need be made:
(i) if the Notes are surrendered for exchange following the Special Interest Record Date immediately preceding the Maturity Date;
(ii) if the Notes are subject to Redemption by the Issuers on a Redemption Date that is after a Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date;
(iii) if the Issuers have specified a Fundamental Change Repurchase Date that is after a Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or
(iv) to the extent of any overdue interest, if any overdue interest exists at the time of exchange with respect to such Note.
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Therefore, for the avoidance of doubt, to the extent Special Interest is payable, all Holders of record on the Special Interest Record Date immediately preceding the Maturity Date, any Redemption Date as described in clause (ii) above and any Fundamental Change Repurchase Date as described in clause (iii) above shall receive and retain the full interest payment due on the Maturity Date or other applicable Special Interest Payment Date regardless of whether their Notes have been exchanged following such Special Interest Record Date.
(h) Subject to Section 14.02(c), the Person in whose name any shares of Common Stock issued or delivered upon exchange are registered shall become the holder of record of such shares of Common Stock as of the Close of Business on the last VWAP Trading Day of the relevant Observation Period. Upon an exchange of Notes, such Person shall no longer be a Holder of such Notes surrendered for exchange; provided that (A) the exchanging Holder shall have the right to receive the Settlement Amount due upon exchange and (B) in the case of an exchange between a Special Interest Record Date and the corresponding Special Interest Payment Date, the Holder of record as of the Close of Business on such Special Interest Record Date shall have the right to receive the interest payable on such Special Interest Payment Date, in accordance with Section 14.02(g).
(i) The Issuers shall not deliver and shall not be required to deliver fractional shares of Common Stock upon exchange of the Notes. Instead, the Issuers shall pay cash in lieu of issuing or delivering any fractional share of Common Stock issuable or deliverable upon exchange based on the Daily VWAP on the last VWAP Trading Day of the relevant Observation Period. For each Note surrendered for exchange, if the Issuers have elected Combination Settlement, the full number of shares of Common Stock that shall be delivered upon exchange thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and, if applicable, any fractional shares of Common Stock remaining after such computation shall be paid in cash.
(j) Subject to applicable securities laws, upon surrender by a Holder of its Notes for exchange, the Issuers may, at their election (an “Exchange Election”), direct the Exchange Agent to surrender, on or prior to the Scheduled Trading Day immediately preceding the first VWAP Trading Day of the applicable Observation Period, such Notes to a financial institution designated by the Issuers (the “Designated Financial Institution”) for third party exchange in lieu of exchange by the Issuers. In order to accept any Notes surrendered to the Issuers for exchange, the Designated Financial Institution must agree to pay and, as applicable, deliver, as the case may be, in exchange for such Notes, all of the cash and shares of Common Stock, if applicable, all as provided in Section 14.02. By the Close of Business on the Scheduled Trading Day immediately preceding the first VWAP Trading Day of the applicable Observation Period, the Issuers shall notify the Holder surrendering Notes for exchange that the Issuers have directed the Designated Financial Institution to make a third party exchange in lieu of exchange by the Issuers.
If the Designated Financial Institution accepts any Notes as described above, it will pay and deliver, as applicable, the cash and shares of Common Stock, if any, due upon exchange to such Holder on the second Business Day immediately following the last VWAP Trading Day of the applicable Observation Period. Any Notes exchanged by the Designated Financial Institution shall remain outstanding. If the Designated Financial Institution agrees to accept any Notes for exchange but does not timely pay and deliver, as applicable, the related cash and shares of Common Stock, if any, or if such Designated Financial Institution does not accept the Notes for exchange, the Issuers shall exchange the Notes and pay and cause to be delivered, as applicable, the cash and shares of Common Stock, if any, due upon exchange on the second Business Day immediately following the last VWAP Trading Day of the applicable Observation Period as described above in this Section 14.02.
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The Issuers’ designation of a Designated Financial Institution does not require such Designated Financial Institution to accept any Notes (unless such Designated Financial Institution has separately made an agreement with the Issuers). The Issuers may, but shall not be obligated to, enter into a separate agreement with any Designated Financial Institution that would compensate it for any such transaction.
Section 14.03 Increase in Exchange Rate Upon Exchange in Connection with a Make-Whole Fundamental Change. (a) If the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to exchange its Notes in connection with such Make-Whole Fundamental Change, the Issuers shall, under the circumstances described below, increase the Exchange Rate for the Notes so surrendered for exchange by a number of additional shares of Common Stock (the “Additional Shares”), as described below. An exchange of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Exchange Date occurs during the period from the open of business on the Effective Date of the Make-Whole Fundamental Change to the Close of Business on the Business Day immediately preceding the related Fundamental Change Repurchase Date (or in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for (x) the proviso in clause (b) of the definition thereof or (y) the Adequate Cash Exchange Provisions, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”).
(b) Upon surrender of Notes for exchange in connection with a Make-Whole Fundamental Change, the Issuers shall satisfy their Exchange Obligation by Cash Settlement or Combination Settlement in accordance with Section 14.02 (after giving effect to any increase in the Exchange Rate required by this Section 14.03); provided, however, that, if the consideration for the Common Stock in any Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change is composed entirely of cash, for any exchange of Notes following the Effective Date of such Make-Whole Fundamental Change, the Exchange Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of exchanged Notes equal to (i) the Exchange Rate (including any increase to reflect the Additional Shares as described in this Section 14.03), multiplied by (ii) such Stock Price. In such event, the Exchange Obligation shall be determined and paid to Holders in cash on the second Business Day following the Exchange Date. The Issuers shall notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) in writing of the Effective Date of any Make-Whole Fundamental Change no later than five Business Days after such Effective Date (the “Make-Whole Fundamental Change Company Notice”).
(c) The number of Additional Shares, if any, by which the Exchange Rate shall be increased shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”) and the price (the “Stock Price”) paid (or deemed to be paid) per share of Common Stock in the Make-Whole Fundamental Change. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices per share of the Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change.
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(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Exchange Rate is otherwise adjusted. The adjusted Stock Prices shall equal (i) the Stock Prices applicable immediately prior to such adjustment, multiplied by (ii) a fraction, the numerator of which is the Exchange Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Exchange Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Exchange Rate as set forth in Section 14.04.
(e) The following table sets forth the number of Additional Shares by which the Exchange Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date set forth below:
| Effective Date | Stock Price | |||||||||||||||||||||||||||||||||||||||||||
| $70.40 | $80.00 | $90.00 | $96.80 | $110.00 | $125.84 | $150.00 | $180.00 | $200.00 | $300.00 | $500.00 | ||||||||||||||||||||||||||||||||||
| September 17, 2026 |
3.8739 | 3.0533 | 2.4258 | 2.0920 | 1.5945 | 1.1758 | 0.7625 | 0.4599 | 0.3317 | 0.0603 | 0.0000 | |||||||||||||||||||||||||||||||||
| January 15, 2027 |
3.8739 | 3.0533 | 2.4258 | 2.0920 | 1.5945 | 1.1738 | 0.7575 | 0.4541 | 0.3260 | 0.0573 | 0.0000 | |||||||||||||||||||||||||||||||||
| January 15, 2028 |
3.8739 | 3.0533 | 2.4258 | 2.0920 | 1.5945 | 1.1558 | 0.7272 | 0.4220 | 0.2963 | 0.0451 | 0.0000 | |||||||||||||||||||||||||||||||||
| January 15, 2029 |
3.8739 | 3.0533 | 2.4258 | 2.0920 | 1.5416 | 1.0846 | 0.6533 | 0.3579 | 0.2409 | 0.0263 | 0.0000 | |||||||||||||||||||||||||||||||||
| January 15, 2030 |
3.8739 | 3.0533 | 2.3637 | 1.9584 | 1.3777 | 0.9201 | 0.5098 | 0.2491 | 0.1538 | 0.0074 | 0.0000 | |||||||||||||||||||||||||||||||||
| January 15, 2031 |
3.8739 | 2.8763 | 2.0166 | 1.5896 | 1.0089 | 0.5909 | 0.2641 | 0.0951 | 0.0459 | 0.0000 | 0.0000 | |||||||||||||||||||||||||||||||||
| January 15, 2032 |
3.8739 | 2.1694 | 0.7805 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | |||||||||||||||||||||||||||||||||
The exact Stock Price and/or Effective Date may not be set forth in the table above, in which case:
(i) if the Stock Price is between two Stock Prices in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares by which the Exchange Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as applicable, based on a 365-day year or 366-day year, as applicable;
(ii) if the Stock Price is greater than $500.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above), no Additional Shares shall be added to the Exchange Rate; and
(iii) if the Stock Price is less than $70.40 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above), no Additional Shares shall be added to the Exchange Rate.
Notwithstanding the foregoing, in no event shall the Exchange Rate per $1,000 principal amount of Notes exceed 14.2045 shares of Common Stock, subject to adjustment in the same manner as the Exchange Rate pursuant to Section 14.04.
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(f) Nothing in this Section 14.03 shall prevent an adjustment to the Exchange Rate pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
Section 14.04 Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuers if any of the following events occurs, except that the Issuers shall not make any adjustments to the Exchange Rate if Holders of the Notes participate (other than in the case of a share split or share combination), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04, without having to exchange their Notes, as if they held a number of shares of Common Stock equal to (i) the Exchange Rate, multiplied by (ii) the number of Notes in the Authorized Denomination held by such Holder.
(a) If PBF Energy exclusively issues shares of Common Stock as a dividend or distribution on shares of Common Stock, or if PBF Energy effects a share split or share combination, the Exchange Rate shall be adjusted based on the following formula:
where,
| ER0 | = | the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as applicable; | ||
| ER1 | = | the Exchange Rate in effect immediately after the open of business on such Ex-Dividend Date or effective date, as applicable; | ||
| OS0 | = | the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or effective date, as applicable, before giving effect to such dividend, distribution, share split or share combination; and | ||
| OS1 | = | the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. | ||
Any adjustment made under this Section 14.04(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the effective date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 14.04(a) is declared and results in an adjustment under this Section 14.04(a) but is not so paid or made, the Exchange Rate shall be immediately readjusted, effective as of the date PBF Energy determines not to pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
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(b) If PBF Energy issues to all or substantially all holders of the Common Stock any rights, options or warrants (other than any issuance pursuant to a shareholder’s rights agreement or rights plan) entitling them, for a period of not more than 60 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Exchange Rate shall be increased based on the following formula:
where,
| ER0 | = | the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance; | ||
| ER1 | = | the Exchange Rate in effect immediately after the open of business on such Ex-Dividend Date; | ||
| OS0 | = | the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; | ||
| X | = | the total number of shares of Common Stock issuable or deliverable pursuant to such rights, options or warrants; and | ||
| Y | = | the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices per share of Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. | ||
Any increase made under this Section 14.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of Common Stock are not issued or delivered after the exercise of such rights, options or warrants, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually issued or delivered. If such rights, options or warrants are not so issued, the Exchange Rate shall be decreased, effective as of the date PBF Energy determines not to issue such rights, options or warrants, to the Exchange Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.
For purposes of this Section 14.04(b) and Section 14.01(b)(ii)(A), in determining whether any rights, options or warrants entitle the holders of Common Stock to subscribe for or purchase shares of Common Stock at less than such average of the Last Reported Sale Prices per share of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by PBF Energy for such rights, options or warrants and any amount payable on exercise or exchange thereof, the value of such consideration, if other than cash, to be determined by the Issuers.
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(c) If PBF Energy distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding:
(i) dividends, distributions or issuances (including share splits) described in Section 14.04(a) or Section 14.04(b);
(ii) dividends or distributions paid exclusively in cash for which an adjustment to the Exchange Rate is required (or would be required assuming the Dividend Threshold was zero and without regard to the deferral exception) pursuant to Section 14.04(d);
(iii) except in the case of a Separation Event, any dividend or distribution pursuant to a shareholder’s rights agreement or rights plan (as described in this Section 14.04(c));
(iv) any dividends and distributions in connection with a Specified Corporate Event described under Section 14.07; and
(v) Spin-Offs as to which the provisions set forth below in this Section 14.04(c) shall apply;
(any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities of PBF Energy, the “Distributed Property”), then the Exchange Rate shall be increased based on the following formula:
where,
| ER0 | = | the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; | ||
| ER1 | = | the Exchange Rate in effect immediately after the open of business on such Ex-Dividend Date; | ||
| SP0 | = | the average of the Last Reported Sale Prices per share of Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and | ||
| FMV | = | the fair market value (as determined by the Issuers taking into account applicable stock exchange rules) of the Distributed Property so distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. | ||
Any increase made under the portion of this Section 14.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be decreased, effective as of the date PBF Energy determines not to pay or make such distribution, to be the Exchange Rate that would then be in effect if such distribution had not been declared.
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Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution.
With respect to an adjustment pursuant to this Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of PBF Energy, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Exchange Rate shall be increased based on the following formula:
where,
| ER0 | = | the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; | ||
| ER1 | = | the Exchange Rate in effect immediately after the open of business on the Ex-Dividend Date for such distribution; | ||
| FMV0 | = | the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to the Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and | ||
| MP0 | = | the average of the Last Reported Sale Prices per share of Common Stock over the Valuation Period. | ||
Any adjustment to the Exchange Rate under the preceding paragraph shall be made immediately after the Close of Business on the last Trading Day of the Valuation Period; provided that for any VWAP Trading Day that falls within the relevant Observation Period for such exchange and within the Valuation Period, the reference to “10” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, such VWAP Trading Day in determining the Exchange Rate as of such VWAP Trading Day of such Observation Period. If any dividend or distribution that constitutes a Spin-Off is declared but not so paid or made, the Exchange Rate shall be immediately decreased, effective as of the date PBF Energy determines not to pay or make such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared or announced.
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For purposes of this Section 14.04(c) (and subject in all respects to Section 14.11), rights, options or warrants distributed by PBF Energy to all holders of the Common Stock entitling them to subscribe for or purchase shares of PBF Energy’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”):
(i) are deemed to be transferred with such shares of Common Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of the Common Stock,
shall be deemed not to have been distributed for purposes of this Section 14.04(c) (and no adjustment to the Exchange Rate under this Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section 14.04(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 14.04(c) was made:
(A) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and
(B) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued.
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For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), any dividend or distribution to which this Section 14.04(c) is applicable that also includes one or both of:
(i) a dividend or distribution of shares of Common Stock to which Section 14.04(a) is applicable (the “Clause A Distribution”); or
(ii) a dividend or distribution of rights, options or warrants to which Section 14.04(b) is applicable (the “Clause B Distribution”),
then:
(A) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 14.04(c) is applicable (the “Clause C Distribution”) and any Exchange Rate adjustment required by this Section 14.04(c) with respect to such Clause C Distribution shall then be made; and
(B) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Exchange Rate adjustment required by Section 14.04(a) and Section 14.04(b) with respect thereto shall then be made, except that, if determined by the Issuers (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or effective date” within the meaning of Section 14.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 14.04(b).
(d) If any cash dividend or distribution is made to all or substantially all holders of the Common Stock (other than a regular quarterly cash dividend that does not exceed the Dividend Threshold per share of Common Stock), the Exchange Rate shall be adjusted based on the following formula:
where:
| ER0 | = | the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; | ||
| ER1 | = | the Exchange Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; | ||
| SP0 | = | the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before the Ex-Dividend Date for such dividend or distribution; | ||
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| T | = | an amount (subject to the proviso below, the “Dividend Threshold”); initially equal to $0.275 per share of Common Stock provided, however, that (x) if such dividend or distribution is not a regular quarterly cash dividend on the Common Stock, then T will be deemed to be zero per share of Common Stock with respect to such dividend or distribution; and (y) the Dividend Threshold will be adjusted in the same manner as, and at the same time and for the same events for which, the Exchange Rate is adjusted as a result of the operation of Sections 14.04(a), 14.04(b), 14.04(c) and 14.04(e); and | ||
| C | = | the amount in cash per share that PBF Energy distributes to all or substantially all holders of the Common Stock. | ||
Any adjustment made pursuant to this Section 14.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Exchange Rate shall be decreased, effective as of the date PBF Energy determines not to make or pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Exchange Rate on the Ex-Dividend Date for such cash dividend or distribution.
(e) If PBF Energy or any of its Subsidiaries make a payment in respect of a tender or exchange offer for Common Stock (other than an odd lot tender offer), to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the average of the Last Reported Sale Prices per share of Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Date”), the Exchange Rate shall be increased based on the following formula:
where:
| ER0 | = | the Exchange Rate in effect immediately prior to the Close of Business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date; | ||
| ER1 | = | the Exchange Rate in effect immediately after the Close of Business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date; | ||
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| AC | = | the aggregate value of all cash and any other consideration (as determined by the Issuers) paid or payable for shares of Common Stock purchased or exchanged in such tender or exchange offer; | ||
| OS0 | = | the number of shares of Common Stock outstanding immediately prior to the Expiration Date (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); | ||
| OS1 | = | the number of shares of Common Stock outstanding immediately after the Expiration Date (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); and | ||
| SP1 | = | the average of the Last Reported Sale Prices per share of Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date. | ||
Any adjustment to the Exchange Rate under this Section 14.04(e) shall be made at the Close of Business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date, but will be given effect as of the Open of Business on the Trading Day next succeeding the Expiration Date; provided that for any VWAP Trading Day that falls within the relevant Observation Period for such exchange and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the Expiration Date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding such Expiration Date, and including, such VWAP Trading Day in determining the Exchange Rate as of such VWAP Trading Day of such Observation Period.
In the event that PBF Energy or one of its Subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but PBF Energy or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all or a portion of such purchases are rescinded, then the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such tender offer or exchange offer had not been made or had been made only in respect of the purchases that have been effected.
(f) [Reserved.]
(g) Notwithstanding anything to the contrary in this Section 14.04 or any other provision of this Indenture or the Notes, if an Exchange Rate adjustment becomes effective on any Ex-Dividend Date and a Holder that has exchanged its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record holder of shares of Common Stock as of the related Exchange Date as described under Section 14.02(h) based on an adjusted Exchange Rate for such Ex-Dividend Date, then, notwithstanding the Exchange Rate adjustment provisions in this Section 14.04, the Exchange Rate adjustment relating to such Ex-Dividend Date shall not be made for such exchanging Holder. Instead, such Holder shall be treated as if such Holder were the record owner of shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.
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(h) All calculations and other determinations under this Article 14 shall be made by the Issuers (taking into account applicable stock exchange rules) and all adjustments to the Exchange Rate shall be made to the nearest one-ten thousandth (1/10,000th) of a share of Common Stock. In no event will the Exchange Rate be adjusted such that the Exchange Price shall be less than the par value per share of Common Stock. Notwithstanding anything in this Article 14 to the contrary, the Issuers shall not be required to adjust the Exchange Rate unless the adjustment would result in a change of at least 1% to the Exchange Rate. However, the Issuers shall carry forward any adjustment that is less than 1% of the Exchange Rate, take such carried-forward adjustments into account in any subsequent adjustment, and make such carried-forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (i) annually on the anniversary of the Issue Date, (ii) on each VWAP Trading Day of the applicable Observation Period, (iii) on the date of a Notice of Redemption and (iv) on the effective date of any Fundamental Change or Make-Whole Fundamental Change. The provisions described in the preceding sentence are referred to as the “deferral exception.”
(i) In addition to those adjustments required by clauses (a), (b), (c), (d), and (e) of this Section 14.04, and to the extent permitted by applicable law and subject to the applicable rules of any stock exchange on which the Common Stock may be listed or admitted to trading, the Issuers from time to time may increase the Exchange Rate by any amount for a period of at least 20 Business Days if the Issuers determine that such increase would be in the Issuers’ or PBF Energy’s best interest. In addition, to the extent permitted by applicable law and subject to the applicable rules of any stock exchange on which the Common Stock may be listed or admitted to trading, the Issuers may also (but is not required to) increase the Exchange Rate to avoid or diminish any income tax to the holders of the Common Stock or rights to purchase shares of Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or similar event. Whenever the Exchange Rate is increased pursuant to either of the preceding two sentences, the Issuers shall send to the Holder of each Note at its last address appearing on the Note Register a notice of the increase at least 15 days prior to the date the increased Exchange Rate takes effect, and such notice shall state the increased Exchange Rate and the period during which it will be in effect.
(j) Except as stated herein, the Issuers shall not adjust the Exchange Rate for the issuance of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or the right to purchase shares of Common Stock or such convertible or exchangeable securities. Notwithstanding anything to the contrary herein, the Exchange Rate shall not be adjusted:
(i) upon the issuance of shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on PBF Energy’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by PBF Energy or any of its Subsidiaries (including the Issuers);
(iii) upon the issuance of shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (ii) of this subsection and outstanding as of the date the Notes were first issued;
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(iv) for stock repurchases that are not tender or exchange offers referred to in Section 14.04(e), including structured or derivative transactions or pursuant to a repurchase program approved by PBF Energy;
(v) solely for a change in the par value of the Common Stock; or
(vi) for accrued and unpaid Special Interest, if any.
(k) [Reserved.]
(l) Whenever the Exchange Rate is adjusted as herein provided, the Issuers shall promptly file with the Trustee (and the Exchange Agent if not the Trustee) an Officer’s Certificate setting forth the Exchange Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Neither the Trustee nor the Exchange Agent shall have any responsibility to verify the accuracy of any adjustment to the Exchange Rate. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Exchange Rate and may assume without inquiry that the last Exchange Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Issuers shall prepare a notice of such adjustment of the Exchange Rate setting forth the adjusted Exchange Rate and the date on which each adjustment becomes effective and shall send such notice of such adjustment of the Exchange Rate to each Holder at its last address appearing on the Note Register of this Indenture. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(m) [Reserved.]
(n) For purposes of this Section 14.04, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of PBF Energy, so long as PBF Energy does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of PBF Energy, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
Section 14.05 Adjustments of Prices. Whenever any provision of this Indenture requires the Issuers to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Exchange Values or the Daily Settlement Amounts over a span of multiple days (including, without limitation, an Observation Period and the period for determining the Stock Price for purposes of a Make-Whole Fundamental Change or a Notice of Redemption), the Issuers shall make appropriate adjustments, in good faith (taking into account applicable stock exchange rules), to each to account for any adjustment to the Exchange Rate that becomes effective, or any event requiring an adjustment to the Exchange Rate where the Ex-Dividend Date, effective date or Expiration Date of the event occurs at any time during the period when the Last Reported Sale Prices, the Daily VWAPs, the Daily Exchange Values or the Daily Settlement Amounts or Stock Prices are to be calculated.
Section 14.06 Shares To Be Fully Reserved. PBF Energy shall reserve and provide, free from preemptive rights, out of its authorized but unissued shares, the maximum number of shares of Common Stock exchangeable under the Notes (including the maximum number of Additional Shares that could be included in the Exchange Rate for an exchange in connection with a Make-Whole Fundamental Change).
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Section 14.07 Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.
(a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving PBF Energy; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the consolidated assets of PBF Energy, taken as a whole; or
(iv) any statutory share exchange,
in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Issuers, or the successor or purchasing corporation, as the case may be, will execute with the Trustee, which supplemental indenture shall not require the consent of the Holders, a supplemental indenture providing that, at and after the effective time of the Specified Corporate Event, the right to exchange each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to exchange such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of Common Stock equal to the Exchange Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of the Specified Corporate Event:
(A) the Issuers shall continue to have the right to determine the form of consideration to be paid, issued or delivered, as the case may be, upon exchange of Notes in accordance with Section 14.02; and
(B) (x) any amount payable in cash upon exchange of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (y) any shares of Common Stock that would have been issuable or deliverable upon exchange of the Notes in accordance with Section 14.02 shall instead be deliverable in the Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (z) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all exchanges that occur after the effective date of such Specified Corporate Event (i) the consideration due upon exchange of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Exchange Rate in effect on the Exchange Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (ii) the Issuers shall satisfy the Exchange Obligation by paying such cash to the exchanging Holder on the second Business Day immediately following the Exchange Date.
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If the Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then the Reference Property into which the Notes shall be exchangeable shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of the Common Stock. The Issuers shall notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination.
Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14 (including giving effect, in the Issuers’ reasonable discretion, to the Dividend Threshold in a manner that reflects the nature and value of the Reference Property). If the Reference Property in respect of any Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than PBF Energy or the Issuers or the successor or purchasing corporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Issuers to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Issuers shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Issuers shall execute a supplemental indenture pursuant to Section 14.07(a), the Issuers shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Issuers shall cause notice of the execution of such supplemental indenture to be sent to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become exchangeable for Reference Property, the Issuers shall notify the Trustee in writing, issue a press release, file or furnish an 8-K (or any successor form) or update their website to disclose the relevant information.
(d) The Issuers and PBF Energy shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to exchange its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
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Section 14.08 Certain Covenants.
(a) PBF Energy covenants that all shares of Common Stock issued or delivered upon exchange of Notes shall be duly authorized, fully paid and non-assessable and free from all preemptive or similar rights of any securityholder of PBF Energy and free from all taxes, liens, charges and adverse claims as the result of any action by PBF Energy.
(b) [Reserved.]
(c) The Issuers and PBF Energy shall comply with all applicable U.S. federal and state securities laws regulating the offer and issuance or delivery of shares of Common Stock upon exchange of the Notes, including that if any shares of Common Stock to be provided for the purpose of exchange of Notes hereunder require registration with or approval of any governmental authority under any U.S. federal or state law before such shares of Common Stock may be validly issued or delivered upon exchange, PBF Energy shall, to the extent then permitted by the rules and interpretations of the Commission, secure such registration or approval, as the case may be.
(d) The Issuers and PBF Energy further covenant that if at any time the Common Stock shall be listed on any Designated Exchange, PBF Energy shall list and keep listed, so long as the Common Stock shall be so listed on such Designated Exchange, any Common Stock issuable or deliverable upon exchange of the Notes.
Section 14.09 Responsibility of Trustee. The Trustee and any other Exchange Agent shall not at any time be under any duty or responsibility to any Holder to determine the Exchange Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Exchange Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Exchange Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the exchange of any Note; and the Trustee and any other Exchange Agent make no representations with respect thereto. Neither the Trustee nor any Exchange Agent shall be responsible for any failure of the Issuers to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of exchange or to comply with any of the duties, responsibilities or covenants of the Issuers contained in this Article. Without limiting the generality of the foregoing, neither the Trustee nor any Exchange Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 14.07 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the exchange of their Notes after any event referred to in such Section 14.07 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate (which the Issuers shall be obligated to furnish to the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Exchange Agent shall be responsible for determining whether any event contemplated by Section 14.01(b) has occurred that makes the Notes eligible for exchange or no longer eligible therefor until the Issuers have delivered to the Trustee and the Exchange Agent the notices referred to in Section 14.01(b) with respect to the
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commencement or termination of such exchange rights, on which notices the Trustee and the Exchange Agent may conclusively rely, and the Issuers agree to deliver such notices to the Trustee and the Exchange Agent immediately after the occurrence of any such event or at such other times as shall be provided for in Section 14.01(b). The parties hereto agree that all notices to the Trustee or the Exchange Agent under this Article 14 shall be in writing.
Section 14.10 [Reserved].
Section 14.11 Stockholder Rights Plans. If PBF Energy has a shareholder’s rights agreement or rights plan in effect upon exchange of the Notes, Holders that exchange their Notes shall receive, in addition to any shares of Common Stock received in connection with such exchange, the appropriate number of rights under such rights agreement or rights plan, if any, and any certificate representing the shares of Common Stock issued upon such exchange shall bear such legends, if any, in each case as may be provided by the terms of any such rights agreement or rights plan, as the same may be amended from time to time. However, if prior to any exchange, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable shareholder’s rights agreement or rights plan (a “Separation Event”), the Exchange Rate shall be adjusted at the time of separation as if PBF Energy distributed to all or substantially all holders of the Common Stock, Distributed Property pursuant to Section 14.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.
ARTICLE 15
REPURCHASE OF NOTES AT OPTION OF HOLDERS
Section 15.01 Intentionally Omitted.
Section 15.02 Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Issuers to repurchase for cash all of such Holder’s Notes, or any portion of the principal thereof that is equal to an Authorized Denomination, on the date (the “Fundamental Change Repurchase Date”) specified by the Issuers that is not less than 20 or more than 35 Business Days following the date of the Fundamental Change Company Notice (subject to extension if required to comply with law), at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid Special Interest, if any, thereon to, but not including, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after an applicable Special Interest Record Date but on or prior to the Special Interest Payment Date to which such Special Interest Record Date relates, in which case the Issuers shall instead pay the full amount of accrued and unpaid Special Interest, if any, to Holders of record as of such Special Interest Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15.
(b) Repurchase of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Certificated Notes, or in compliance with the Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case, on or before the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
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(ii) delivery of the Notes, if the Notes are Certificated Notes, to the Paying Agent on or before the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the Applicable Procedures, in each case, such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.
The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(A) in the case of Certificated Notes, the certificate numbers of the Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be a minimum of $1,000 or an integral multiple of $1,000 in excess thereof; and
(C) that the Notes are to be repurchased by the Issuers pursuant to the applicable provisions of the Notes and this Indenture;
provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 15.03.
If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for exchange until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03.
The Paying Agent shall promptly notify the Issuers of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of a Fundamental Change, the Issuers shall provide to all Holders of Notes and the Trustee and the Paying Agent (if other than the Trustee and the Exchange Agent) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
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(ii) the Effective Date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Exchange Agent;
(vii) the Exchange Rate and any adjustments to the Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be exchanged only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture (or, in the case of a Global Note, complies with the Applicable Procedures with respect to such a withdrawal);
(ix) the procedures that Holders must follow to require the Issuers to repurchase their Notes; and
(x) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes.
At the Issuers’ written request, the Trustee shall give such notice in the Issuers’ and PBF Energy’s names and at the Issuers’ expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Issuers. In such a case, the Issuers shall deliver such notice to the Trustee at least two Business Days prior to the date that the notice is required to be given to the Holders (unless a shorter notice period shall be agreed to by the Trustee), together with an Officer’s Certificate requesting that the Trustee give such notice.
Such notice shall be delivered to the Trustee, to the Paying Agent (if other than the Trustee) and to each Holder at its address shown in the Note Register (and to the beneficial owner as required by applicable law) or, in the case of Global Notes, in accordance with the Applicable Procedures.
No failure of the Issuers and/or PBF Energy to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Issuers on any date at the option of the Holders in connection with a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Issuers in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Certificated Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Issuers in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
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(e) Notwithstanding the foregoing, the Issuers shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change:
(i) if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Issuers pursuant to this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Issuers on the Fundamental Change Repurchase Date; or
(ii) pursuant to clause (b) of the definition thereof (or a Fundamental Change pursuant to clause (a) that also results in a Fundamental Change pursuant to clause (b)), if (A) such Fundamental Change results in the Notes becoming exchangeable (pursuant to the provisions described in Section 14.08) into an amount of cash per Note that is greater than (x) the Fundamental Change Repurchase Price (assuming the maximum amount of accrued interest would be payable based on the latest possible Fundamental Change Repurchase Date), plus (y) to the extent that the 35th Trading Day immediately following the Effective Date of such Fundamental Change is after an applicable Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date, the full amount of interest payable per Note on such Special Interest Payment Date and (B) the Issuers provide timely notice of the Holders’ right to exchange their Notes based on such Fundamental Change as described in Section 14.01(b)(iii) (the requirements set forth in clauses (A) and (B) of this Section 15.02(d)(ii), the “Adequate Cash Exchange Provisions”).
Section 15.03 Withdrawal of Fundamental Change Repurchase Notice. A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Paying Agent in accordance with this Section 15.03 at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(a) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, which portion must be in an Authorized Denomination,
(b) if Certificated Notes have been issued, the certificate number of the Notes in respect of which such notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in an Authorized Denomination;
provided, however, that if the Notes are Global Notes, the withdrawal notice must comply with the Applicable Procedures.
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Section 15.04 Deposit of Fundamental Change Repurchase Price. (a) The Issuers shall deposit with the Trustee (or other Paying Agent appointed by the Issuers, or if the Issuers are acting as their own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04) on or prior to 10:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price. Subject to receipt of funds by the Trustee (or other Paying Agent appointed by the Issuers), payment for Notes surrendered for repurchase (and not validly withdrawn prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date) will be made on the later of (i) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions in Section 15.02) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Issuers) by the Holder thereof in the manner required by Section 15.02, by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Issuers, return to the Issuers any funds in excess of the Fundamental Change Repurchase Price.
(b) If by 10:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by the Issuers) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Fundamental Change Repurchase Date or any applicable extension thereof, then, with respect to Notes that have been properly surrendered for repurchase and not validly withdrawn:
(i) such Notes shall cease to be outstanding and interest shall cease to accrue on such Notes on the Fundamental Change Repurchase Date or any applicable extension thereof (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and
(ii) all other rights of the Holders of such Notes will terminate on the Fundamental Change Repurchase Date (other than (x) the right to receive the Fundamental Change Repurchase Price and (y) if the Fundamental Change Repurchase Date falls after an applicable Special Interest Record Date but on or prior to the related Special Interest Payment Date, the right of the Holder on such Special Interest Record Date to receive the accrued and unpaid Special Interest, if any, to, but not including, the Fundamental Change Repurchase Date).
(c) Upon surrender of a Note that is to be repurchased in part pursuant to Section 15.02, the Issuers shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an Authorized Denomination equal in principal amount to the portion of the Note surrendered that is not to be repurchased, without payment of any service charge.
Section 15.05 Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer, the Issuers will, if required:
(a) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable;
(b) file a Schedule TO or any other required schedule under the Exchange Act; and
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(c) otherwise comply in all material respects with all federal and state securities laws in connection with any offer by the Issuers to repurchase the Notes;
in each case, so as to permit the rights and obligations under this Article 15 to be exercised in the time and in the manner specified in this Article 15, subject to extension if required to comply with law. To the extent that any securities laws and regulations conflict with the provisions of this Indenture with respect to the repurchase of Notes, the Issuers are required to comply with such securities laws and regulations and shall not be deemed to be in breach of this Indenture as a result thereof.
ARTICLE 16
REDEMPTION
Section 16.01 Right of the Issuers to Redeem the Notes. The Notes shall not be redeemable by the Issuers prior to the Maturity Date, except as described in this Article 16 and no sinking fund is provided for the Notes.
(a) The Issuers may not redeem the Notes at any time before January 20, 2030, except for a Cleanup Redemption as provided under Section 16.01(c).
(b) Subject to the terms of this Article 16, the Issuers have the right, at their election, to redeem (an “Optional Redemption”) all, or any portion in an Authorized Denomination, of the Notes, for cash equal to the Redemption Price, at any time and from time to time, on a Redemption Date on or after January 20, 2030 and prior to the 31st Scheduled Trading Day immediately preceding the Maturity Date, if the Last Reported Sale Price per share of the Common Stock has been at least 130% of the Exchange Price then in effect for at least 20 Trading Days (whether or not consecutive), including the Trading Day immediately preceding the Redemption Notice Date, during any 30 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Redemption Notice Date.
If the Issuers elect to redeem fewer than all of the outstanding Notes, at least $100.0 million aggregate principal amount of Notes must remain outstanding and not be subject to redemption after giving effect to the Notice of Redemption (the “Partial Redemption Limitation”).
If the Issuers elect to redeem fewer than all of the outstanding Notes pursuant to an Optional Redemption and the Notes to be redeemed are Global Notes, the Notes to be redeemed shall be selected by the Depositary in accordance with the Applicable Procedures of the Depositary. If the Company decides to redeem fewer than all of the outstanding Notes pursuant to an Optional Redemption and the Notes to be redeemed are not Global Notes then held by the Depositary, the Trustee shall select the Notes or portions thereof to be redeemed (in Authorized Denominations) by lot, on a pro rata basis or by another method the Trustee considers to be fair and appropriate. If any Note selected for partial Optional Redemption is submitted for conversion in part after such selection, the portion of the Note submitted for conversion shall be deemed (so far as may be possible) to be the portion selected for such partial Optional Redemption.
(c) Subject to the terms of this Article 16, the Issuers have the right, at their election, to redeem all, but not less than all, of the Notes at any time prior to the 31st Scheduled Trading Day immediately preceding the Maturity Date, if the principal amount of the Notes outstanding at such time is less than 10% of the aggregate principal amount of the Notes initially issued under this Indenture (including the additional Notes issued pursuant to the initial purchasers’ option) (a “Cleanup Redemption”).
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(d) If the applicable Redemption Date falls after an applicable Special Interest Record Date but on or prior to the immediately succeeding Special Interest Payment Date, the Issuers will pay, on or prior to such Special Interest Payment Date, the full amount of accrued and unpaid Special Interest, if any, to the Holder as of the Close of Business of such Special Interest Record Date (assuming, solely for these purposes, that such Note remained outstanding through such Special Interest Payment Date, if such Redemption Date is before such Special Interest Payment Date) and the Redemption Price shall be equal to 100% of the principal amount of Notes to be redeemed.
(e) For the avoidance of doubt, each reference in this Indenture to (i) any Note that is called for Redemption (or similar language) includes any Note that is deemed to be called for Redemption pursuant to Section 14.01(b)(v); and (ii) any Note that is not called for Redemption (or similar language) excludes any Note that is deemed to be called for Redemption pursuant to Section 14.01(b)(v).
Section 16.02 Notice of Redemption.
(a) To call any Notes for Redemption pursuant to Section 16.01, the Issuers shall fix a date for Redemption (a “Redemption Date”) and the Issuers shall or, at their written request received by the Trustee not less than five Business Days prior to the date on which notice is sent to the Holders (or such shorter period of time as may be acceptable to the Trustee), the Trustee shall, in the name of and at the expense of the Issuers, send or cause to be sent a notice of such Redemption (a “Notice of Redemption”) not less than 35 nor more than 55 Scheduled Trading Days prior to the Redemption Date to each Holder of Notes so to be redeemed at its last address as the same appears on the Note Register; provided, however, that if the Issuers shall give a Notice of Redemption, it shall also give a written notice of the Redemption Date to the Trustee and the Paying Agent. A Redemption Date must be a Business Day of the Issuers’ choosing that is no more than fifty-five (55), nor less than thirty-five (35), Scheduled Trading Days after the Redemption Notice Date and that cannot fall on or after the 31st Scheduled Trading Day immediately preceding the Maturity Date
(b) A Notice of Redemption, if delivered in the manner provided herein, shall be conclusively presumed to have been given duly, whether or not the Holder receives such notice. In any case, failure to deliver such Notice of Redemption or any defect in the Notice of Redemption to the Holder of any Note designated for Redemption shall not affect the validity of the proceedings for the Redemption of any other Note.
(c) Each Notice of Redemption shall specify:
(i) that the Notes have been called for Redemption, briefly describing the Issuers’ Redemption rights under this Indenture;
(ii) the Redemption Date for such Redemption;
(iii) the Redemption Price per $1,000 principal amount of Notes for such Redemption (and the amount, manner and timing of any interest payment payable pursuant to Section 16.01(d));
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(iv) the place or places where such Notes are to be surrendered for payment of the Redemption Price;
(v) in case any Note is to be redeemed in part only, the portion of the principal amount thereof to be redeemed and on and after the Redemption Date, upon surrender of such Note, a new Note in principal amount equal to the unredeemed portion thereof shall be issued;
(vi) that Notes called for Redemption must be delivered to the Paying Agent (in the case of Certificated Notes) or the Applicable Procedures must be complied with (in the case of a beneficial interest in a Global Note) for the Holder thereof to be entitled to receive the Redemption Price;
(vii) that on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that, unless the Issuers default in the payment of the Redemption Price, the interest thereon, if any, shall cease to accrue on and after the Redemption Date (subject to the right of Holders of record on the relevant applicable Special Interest Record Date that is prior to the Redemption Date to receive interest payable pursuant to Section 16.01(d));
(viii) that Holders may surrender their Notes called for Redemption for exchange at any time from the date of the Notice of Redemption to the Close of Business on the second Scheduled Trading Day immediately preceding the Redemption Date or, if the Issuers fail to pay the Redemption Price, such later date on which the Issuers pay or duly provide for the Redemption Price;
(ix) the procedures an exchanging Holder must follow to exchange its Notes called for Redemption and, if the Issuers choose to elect a Settlement Method for any such exchanges, the relevant Settlement Method;
(x) the Exchange Rate and, if applicable, the number of shares of Common Stock added to the Exchange Rate in accordance with Section 16.06; and
(xi) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes.
A Notice of Redemption shall be irrevocable. In the case of a Redemption, a Holder may exchange any or all of its Notes called for Redemption at any time from the date of the Notice of Redemption to the Close of Business on the second Scheduled Trading Day immediately preceding the Redemption Date or, if the Issuers fail to pay the Redemption Price, such later date on which the Issuers pay or duly provide for the Redemption Price.
Section 16.03 Payment of Notes Called for Redemption.
(a) If any Notice of Redemption has been given in respect of the Notes in accordance with Section 16.02, the Notes shall become due and payable on the applicable Redemption Date at the place or places stated in the Notice of Redemption and at the applicable Redemption Price. On presentation and surrender of the Notes at the place or places stated in the Notice of Redemption, the Notes shall be paid and redeemed by the Issuers at the applicable Redemption Price.
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(b) Prior to 10:00 a.m., New York City time, on any Redemption Date, the Issuers shall deposit with the Trustee (or other Paying Agent appointed by the Issuers, or if the Issuers are acting as their own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04) an amount of cash sufficient to pay the Redemption Price of all of the Notes to be redeemed on such Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the Redemption Date for such Notes. The Trustee (or other Paying Agent appointed by the Issuers) shall, promptly after such payment and upon written demand by the Issuers, return to the Issuers any funds in excess of the Redemption Price.
Section 16.04 Selection, Exchange and Transfer of Notes to be Redeemed in Part. If less than all Notes then outstanding are called for Redemption, then:
(a) the Notes to be redeemed will be selected by the Trustee as follows: (1) in the case of Global Notes, in accordance with the Applicable Procedures; and (2) in the case of Certificated Notes, by lot, on a pro rata basis or by another method the Trustee considers to be fair and appropriate; and
(b) if only a portion of a Note is subject to Redemption and such Note is exchanged in part, then the exchanged portion of such Note will be deemed to be from the portion of such Note that was subject to the Redemption.
In the event of any Redemption, the Issuers shall not be required to (x) issue, register the transfer of or exchange of any interest in any Notes during the 15 calendar day period prior to the relevant Redemption Notice Date or (y) register the transfer of or exchange of any interest in any Notes so selected for Redemption, in whole or in part, except the unredeemed portion of any Notes being redeemed in part. For the avoidance of doubt, the preceding sentence shall not be construed as a prohibition on any exchange of the Notes pursuant to Article 14.
Section 16.05 Restrictions on Redemption. The Issuers may not redeem any Notes on any date if the principal amount of the Notes has been accelerated in accordance with the terms of this Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (or, if the Issuers fail to pay the Redemption Price, such later date on which the Issuers pay the Redemption Price) (except in the case of an acceleration resulting from a Default by the Issuers in the payment of the Redemption Price with respect to such Notes).
Section 16.06 Increased Exchange Rate Applicable to Certain Notes Called for Redemption Surrendered for Exchange in Connection with a Redemption.
(a) If a Holder elects to exchange its Notes in connection with a Notice of Redemption pursuant to Section 14.01(b)(v) and this Article 16 (whether for Optional Redemption or Cleanup Redemption, but only with respect to the Notes called for Redemption), the Exchange Rate will be increased by a number of Additional Shares as described in this Section 16.06. An exchange of Notes shall be deemed to be “in connection with” a Notice of Redemption if, with respect only to the Notes called for Redemption, the relevant Exchange Date occurs during the period from the open of business on the Redemption Notice Date to the Close of Business on the second Scheduled Trading Day immediately preceding the Redemption Date or, if the Issuers fail to pay the Redemption Price, such later date on which the Issuers pay or duly provide for the Redemption Price.
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(b) The number of Additional Shares, if any, by which the Exchange Rate shall be increased pursuant to this Section 16.06 if a Holder elects to exchange its Notes in connection with a Notice of Redemption (but only with respect to the Notes called for Redemption) shall be determined by reference to the table set forth in Section 14.03(e) based on the Redemption Notice Date and the Redemption Reference Price, but determined for purposes of this Section 16.06 as if (i) the Holder had elected to exchange its Notes in connection with a Make-Whole Fundamental Change, (ii) the Redemption Notice Date were the Effective Date of the relevant Make-Whole Fundamental Change and (iii) the Redemption Reference Price were the Stock Price in respect of such Make-Whole Fundamental Change.
ARTICLE 17
MISCELLANEOUS PROVISIONS
Section 17.01 Provisions Binding on Issuers’ and PBF Energy’s Successors. All the covenants, stipulations, promises and agreements of each of the Issuers and PBF Energy, as applicable, contained in this Indenture shall bind its successors and assigns whether so expressed or not.
Section 17.02 Official Acts by Successor Entity. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or Officer of PBF Holding shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Issuers.
Section 17.03 Addresses for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders on the Issuers shall be in writing (including facsimile and electronic mail in PDF format) and shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is furnished by the Issuers to the Trustee) at the address specified by the Issuers in writing to the Trustee from time to time. Any notice, direction, request or demand hereunder to or upon the Trustee shall be in writing (including electronic mail in PDF format) and shall be deemed to have been sufficiently given or made, for all purposes, if given or served, upon actual receipt by the Trustee.
The Trustee, by notice to the Issuers, may designate additional or different addresses for subsequent notices or communications.
Any notice or communication delivered or to be delivered to a Holder of Certificated Notes shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the Note Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance with the Applicable Procedures of the Depositary and shall be sufficiently given to it if so delivered within the time prescribed. Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any Fundamental Change Company Notice) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with the Depositary’s applicable procedures.
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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, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuers shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuers whenever a person is to be added or deleted from the listing. If a party elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuers understand and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Issuers shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuers and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuers. 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 such directions conflict or are inconsistent with a subsequent written instruction. The Issuers agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions 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; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuers; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
Section 17.04 Governing Law. THIS INDENTURE, EACH NOTE AND EACH GUARANTEE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE, ANY NOTE OR ANY GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 17.05 [Reserved].
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Section 17.06 Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand by the Issuers to the Trustee to take any action under any of the provisions of this Indenture, the Issuers shall furnish to the Trustee an Officer’s Certificate and Opinion of Counsel stating that in the opinion of the signor(s), all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; provided, however, that no such Opinion of Counsel shall be delivered with respect to the authentication and delivery of the Notes on the Issue Date or the Issuers Order delivered in connection therewith.
Each Officer’s Certificate and Opinion of Counsel provided for, by or on behalf of the Issuers in this Indenture and delivered to the Trustee with respect to compliance with this Indenture (other than the Officer’s Certificates provided for in Section 4.09) shall include (i) a statement that the Person making such certificate has read such covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statement contained in such certificate is based; (iii) a statement that, in the judgment of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed judgment as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the judgment of such Person, such covenant or condition has been complied with.
Notwithstanding anything to the contrary in this Section 17.06, if any provision in this Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in connection with any action to be taken by the Trustee or the Issuers hereunder, the Trustee shall be entitled to such Opinion of Counsel.
Section 17.07 Legal Holidays. If any Special Interest Payment Date, any Fundamental Change Repurchase Date, any Redemption Date or the Maturity Date is not a Business Day or is a day on which financial institutions located in the state in which the Corporate Trust Office is located are authorized or required by law or executive order to close or be closed, then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day that is not a day on which financial institutions located in the state in which the Corporate Trust Office is located are authorized or required by law or executive order to close or be closed with the same force and effect as if taken on such date, and no interest shall accrue in respect of the delay.
Section 17.08 No Security Interest Created. Nothing in this Indenture or in the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 17.09 Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Custodian, any Bid Solicitation Agent, any Exchange Agent, any authenticating agent, any Note Registrar and their successors hereunder or the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 17.10 Table of Contents, Headings, Etc. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
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Section 17.11 Authenticating Agent. The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf and subject to its direction in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04 and Section 15.04 as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section 7.08.
Any corporation or other entity into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other entity succeeding to all or substantially all the corporate trust business of any authenticating agent, shall be the successor of the authenticating agent hereunder, if such successor corporation or other entity is otherwise eligible under this Section 17.11, without the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor corporation or other entity.
Any authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Issuers. The Trustee may at any time terminate the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the Issuers. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section, the Trustee may appoint a successor authenticating agent (which may be the Trustee), shall give written notice of such appointment to the Issuers and shall mail notice of such appointment to all Holders as the names and addresses of such Holders appear on the Note Register.
The Issuers agree to pay to the authenticating agent from time to time reasonable compensation for its services although the Issuers may terminate the authenticating agent, if they determine such agent’s fees to be unreasonable.
The provisions of Section 7.02, Section 7.03, Section 7.04, Section 7.06, Section 8.03 and this Section 17.11 shall be applicable to any authenticating agent.
If an authenticating agent is appointed pursuant to this Section 17.11, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
__________________________,
as Authenticating Agent, certifies that this is one of the Notes described
in the within-named Indenture.
| By: |
| |
| Authorized Officer |
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Section 17.12 Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. The words “execution”, “signed”, “signature” and words of like import in this Indenture relating to the execution and delivery of this Indenture and any documents to be delivered in connection herewith shall be deemed to include electronic signatures, which shall be of the same legal effect, validity or enforceability as a manually executed signature to the extent and as provided in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 17.13 Severability. In the event any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable, or if this Indenture shall be deemed unenforceable against any of the parties hereto, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions (or the enforceability of this Indenture against the other parties) shall not in any way be affected or impaired.
Section 17.14 Waiver of Jury Trial; Submission of Jurisdiction. EACH OF THE ISSUERS, PBF ENERGY, EACH GUARANTOR, THE TRUSTEE AND EACH HOLDER BY ITS ACCEPTANCE OF A NOTE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE ISSUERS, PBF ENERGY, EACH GUARANTOR, THE TRUSTEE AND EACH HOLDER BY ITS ACCEPTANCE OF A NOTE HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEES AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS AND VALIDLY AND IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO IN THIS PARAGRAPH AND ANY CLAIM THAT SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 17.15 Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, pandemics, epidemics, quarantine, restrictions, recognized public emergencies, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
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Section 17.16 Calculations. Except as otherwise provided herein, the Issuers shall be responsible for making all calculations called for under the Notes, the Guarantees or this Indenture. These calculations include, but are not limited to, determinations of the Stock Price or Trading Price, the Last Reported Sale Prices per share of Common Stock, the Redemption Price, the Fundamental Change Repurchase Price, the Exchange Price, the Daily VWAPs, the Daily Exchange Values, the Daily Settlement Amounts, accrued interest payable on the Notes (including Special Interest and Registration Default Special Interest) and the Exchange Rate of the Notes. The Issuers shall make all these calculations in good faith (taking into account applicable stock exchange rules) and, absent manifest error, such calculations shall be final and binding on Holders of Notes. The Issuers shall provide a schedule of their calculations to each of the Trustee and the Exchange Agent, and each of the Trustee and Exchange Agent is entitled to rely conclusively upon the accuracy of such calculations without independent verification. The Trustee will forward the Issuers’ calculations to any Holder of Notes upon the written request of that Holder at the sole cost and expense of the Issuers. In no event shall the Trustee or the Exchange Agent be charged with knowledge of or have any duty to monitor Stock Price or Observation Period. Neither the Trustee nor the Exchange Agent shall have any liability or responsibility for calculations, information relating to any calculation or determinations of amounts, determining whether events requiring or permitting exchanges have occurred, determining whether any adjustment is required to be made with respect to exchange rights and, if so, how much, or for the issuance or delivery of shares of Common Stock.
Section 17.17 U.S.A. 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, pursuant to Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with the Applicable Law.
Section 17.18 Withholding Taxes. Each Holder of a Note agrees, and each beneficial owner of an interest in a Global Note, by its acquisition of such interest, is deemed to agree, that if the Issuers or other applicable withholding agent (including the Trustee) pays withholding taxes (including backup withholding) on behalf of such Holder or beneficial owner as a result of an adjustment or the non-occurrence of an adjustment to the Exchange Rate or with respect to the payment of Special Interest, then the Issuers or such withholding agent, as applicable, may, at its option, withhold such taxes from or set off such taxes against Special Interest, if any, or other subsequent payments on the Notes, payments on shares of Common Stock, or sales proceeds received by, or other funds or assets of, such Holder or beneficial owner.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
| ISSUERS: | ||
| PBF HOLDING COMPANY LLC | ||
| PBF FINANCE CORPORATION | ||
| By: | /s/ Joseph Marino | |
| Name: Joseph Marino | ||
| Title: Chief Financial Officer | ||
| PBF ENERGY: | ||
| PBF ENERGY INC. | ||
| By: | /s/ Joseph Marino | |
| Name: Joseph Marino | ||
| Title: Chief Financial Officer | ||
| GUARANTORS: | ||
| PBF SERVICES COMPANY LLC | ||
| PBF INVESTMENTS LLC | ||
| DELAWARE CITY REFINING COMPANY LLC | ||
| PBF POWER MARKETING LLC | ||
| PAULSBORO REFINING COMPANY LLC | ||
| TOLEDO REFINING COMPANY LLC | ||
| PBF INTERNATIONAL INC. | ||
| CHALMETTE REFINING, L.L.C. | ||
| TORRANCE REFINING COMPANY LLC | ||
| PBF ENERGY WESTERN REGION LLC | ||
| MARTINEZ REFINING COMPANY LLC | ||
| By: | /s/ Joseph Marino | |
| Name: Joseph Marino | ||
| Title: Chief Financial Officer | ||
[Signature Page to Indenture]
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Bradley E. Scarbrough | |
| Name: Bradley E. Scarbrough | ||
| Title: Vice President | ||
[Signature Page to Indenture]
EXHIBIT A
[FORM OF FACE OF NOTE]
[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUERS OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
| (1) | REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT AND |
| (2) | AGREES FOR THE BENEFIT OF PBF HOLDING COMPANY LLC AND PBF FINANCE CORPORATION (THE “ISSUERS”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN EXCEPT: |
| (A) | TO PBF HOLDING COMPANY LLC, PBF FINANCE CORPORATION, PBF ENERGY INC. OR ANY SUBSIDIARY THEREOF (INCLUDING THE ISSUER), OR |
| (B) | TO A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT. |
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (B) ABOVE, THE ISSUERS, THE TRUSTEE AND THE REGISTRAR RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PBF HOLDING COMPANY LLC AND PBF FINANCE CORPORATION
0% Exchangeable Senior Note due 2032
| No. [144A-[__]] | [Initially]1 $[________] | |
| CUSIP No. [______] | ||
PBF Holding Company LLC, a Delaware limited liability company, and PBF Finance Corporation, a Delaware corporation (together, the “Issuers,” which term includes any successor entity under the Indenture referred to on the reverse hereof), for value received hereby promise to pay to [CEDE & CO.]2 [__________]3, or registered assigns, the principal amount [as set forth in the “Schedule of Exchanges of Notes” attached hereto]4 [of $[____]]5 or such other amount as reflected on the books and records of the Trustee and the Depositary, on January 15, 2032 and interest thereon as set forth below.
This Note shall not bear regular interest, and the principal amount of this Note shall not accrete. Accrued Special Interest, if any, on this Note shall be computed on the basis of a 360-day year composed of twelve 30-day months and, for a partial month, on the basis of the number of days actually elapsed in a 30-day month. Special Interest, if any, would be payable semi-annually in arrears on each January 15 and July 15, commencing on January 15, 2027 (if and to the extent that Special Interest is then payable), to Holders of record at the Close of Business on the preceding January 1 and July 1 (whether or not such day is a Business Day), respectively. Special Interest, if any, will be payable as set forth in Section 4.06(d) and Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed to include Special Interest if, in such context, Special Interest is, was or would be payable pursuant to any of such Section 4.06(d) or Section 6.03, and any express mention of the payment of Special Interest in any provision therein and herein shall not be construed as excluding Special Interest in those provisions thereof and hereof where such express mention is not made.
Any Defaulted Amounts shall not accrue interest unless Special Interest, if any, was payable on the relevant payment date, in which case Defaulted Amounts representing Special Interest shall accrue interest per annum at the then applicable Special Interest rate from, and including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Issuers, at their election in accordance with Section 2.03(c) of the Indenture.
The Issuers shall pay the principal of and Special Interest, if any, on this Note, so long as such Note is a Global Note, in immediately available funds to the Depositary or its nominee, as the case may be, as the registered Holder of such Note. As provided in and subject to the provisions of the Indenture, the Issuers shall pay the principal of any Notes (other than Notes that are Global Notes) upon presentation thereof at the office or agency designated by the Issuers for that purpose. The Issuers have initially designated the Trustee as their Paying Agent and Note Registrar in respect of the Notes and its Corporate Trust Office located in the continental United States as a place where Notes may be presented for payment or for registration of transfer.
| 1 | Include if a global note. |
| 2 | Include if a global note. |
| 3 | Include if a certificated note. |
| 4 | Include if a global note. |
| 5 | Include if a certificated note. |
Exhibit A- 2
Upon exchange of any Note, the Issuers shall, at their election, pay or issue or deliver, as the case may be, cash or a combination of cash and shares of Common Stock.
The Notes shall be unconditionally guaranteed, jointly and severally, by each of the Guarantors pursuant to the terms and conditions set forth in Article 5 of the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Note, and any claim, controversy or dispute arising under or related to this Note, shall be construed in accordance with and governed by the laws of the State of New York.
In the case of any conflict between this Note and the Indenture, the provisions of the Indenture shall control and govern.
This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or a duly authorized authenticating agent under the Indenture.
[Remainder of page intentionally left blank]
Exhibit A- 3
IN WITNESS WHEREOF, the Issuers have caused this Note to be duly executed.
| PBF HOLDING COMPANY LLC | ||
| PBF FINANCE CORPORATION | ||
| By: |
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| Name: | ||
| Title: | ||
Exhibit A- 4
Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. Bank Trust Company, National Association, as Trustee,
certifies that this is one of the Notes described
in the within-named Indenture.
| By: |
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| Authorized Signatory |
Exhibit A- 5
[FORM OF REVERSE OF NOTE]
PBF HOLDING COMPANY LLC AND PBF FINANCE CORPORATION
0% Exchangeable Senior Note due 2032
This Note is one of a duly authorized issue of Notes of the Issuers, designated as their 0% Exchangeable Senior Notes due 2032 (the “Notes”), limited to the aggregate principal amount of $550,000,000 all issued under and pursuant to an Indenture dated as of September 17, 2026 (the “Indenture”), among the Issuers, PBF Energy, the Guarantors party thereto from time to time and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Exchange Agent, the Issuers and the Holders of the Notes. Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture. The Notes represent the aggregate principal amount of outstanding Notes from time to time endorsed hereon and the aggregate principal amount of outstanding Notes represented hereby may from time to time be increased or reduced to reflect repurchases, cancellations, exchanges for cash, shares of Common Stock or a combination thereof, transfers or exchanges permitted by the Indenture.
In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of, and Special Interest, if any, on, all Notes may be declared, by either the Trustee or Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture. In the case certain Events of Default relating to a bankruptcy (or similar proceeding) with respect to the Issuers shall have occurred, the principal of, and Special Interest, if any, on, all Notes shall automatically become immediately due and payable, as set forth in the Indenture.
Subject to the terms and conditions of the Indenture, the Issuers will make all payments and deliveries in respect of the Redemption Price on a Redemption Date and the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date and the principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a Note to a Paying Agent to collect such payments in respect of the Note. The Issuers will pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. Upon exchange of any Note, the Issuers shall, at their election, pay or issue or deliver, as the case may be, cash or a combination of cash and shares of Common Stock.
The Indenture contains provisions permitting the Issuers and the Trustee in certain circumstances, without the consent of the Holders of the Notes, and in certain other circumstances, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures modifying the terms of the Indenture and the Notes as described therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any past Default or Event of Default under the Indenture and its consequences.
Exhibit A- 6
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuers, which is absolute and unconditional, to pay the principal (including the Redemption Price and Fundamental Change Repurchase Price, if applicable) of or the consideration due upon exchange for, as the case may be, and accrued and unpaid Special Interest, if any, on this Note at the place, at the respective times, at the rate and in the lawful money herein prescribed.
The Notes are issuable in registered form without coupons in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof. At the office or agency of the Issuers referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations, without payment of any service charge but, if required by the Issuers or Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange of Notes being different from the name of the Holder of the old Notes surrendered for such exchange.
The Notes are not subject to redemption through the operation of any sinking fund. Under certain circumstances specified in the Indenture, the Notes will be subject to redemption by the Issuers at the Redemption Price.
Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s option, to require the Issuers to repurchase for cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase Date at a price equal to the Fundamental Change Repurchase Price.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions specified in the Indenture, prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Maturity Date, to exchange any Notes or portion thereof that is $1,000 or an integral multiple of $1,000 in excess thereof at the Exchange Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture.
In addition to the rights provided to Holders of Notes under the Indenture, Holders shall have all the rights set forth in the Registration Rights Agreement.
Terms used in this Note and defined in the Indenture are used herein as therein defined.
Exhibit A- 7
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act
CUST = Custodian
TEN ENT = as tenants by the entireties
JT TEN = joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
Exhibit A- 8
SCHEDULE A6
SCHEDULE OF EXCHANGES OF NOTES
PBF Holding Company LLC
0% Exchangeable Senior Notes due 2032
The initial principal amount of this Global Note is [__________] DOLLARS ($[________]). The following increases or decreases in this Global Note have been made:
| Date of Exchange |
Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note |
Principal Amount of this Global Note following such decrease or increase |
Signature of authorized signatory of Trustee or Custodian | ||||
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| 6 | Include if a global note. |
Exhibit A- 9
ATTACHMENT 1
[FORM OF NOTICE OF EXCHANGE]
| To: | U.S. Bank Trust Company, National Association, as Exchange Agent |
633 W 5th St., Los Angeles, CA 90071
RE: PBF Holding Company LLC and PBF Finance Corporation 0% Exchangeable Senior Notes due 2032
The undersigned registered owner of this Note hereby exercises the option to exchange this Note, or the portion hereof (that is $1,000 principal amount or an integral multiple of $1,000 in excess thereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Issuers’ election, in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable and any shares of Common Stock issuable or deliverable upon such exchange, together with any cash payable for any fractional share, and any Notes representing any unexchanged principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below.
If any shares of Common Stock or any portion of this Note not exchanged are to be issued in the name of a Person other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 14.02(d) and Section 14.02(e) of the Indenture. Any amount required to be paid to the undersigned on account of Special Interest, if any, accompanies this Note.
In the case of Certificated Notes, the certificate numbers of the Notes to be exchanged are as set forth below: __________________________
Dated: _____________________
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| Signature Guarantee |
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be delivered, or Notes are to be delivered, other than to and in the name of the registered holder.
Fill in for registration of shares of Common Stock if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:
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| (Name) |
Exhibit A- 10
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| (Street Address) |
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| (City, State and Zip Code) |
| Please print name and address |
| Principal amount to be exchanged (if less than all): $______,000 |
| NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatsoever. |
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| Social Security or Other Taxpayer |
| Identification Number |
Exhibit A- 11
ATTACHMENT 2
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
| To: | PBF Holding Company LLC and PBF Finance Corporation |
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from PBF Holding Company LLC and PBF Finance Corporation (the “Issuers”) as to the occurrence of a Fundamental Change with respect to the Issuers and specifying the Fundamental Change Repurchase Date and requests and instructs the Issuers to pay to the registered holder hereof in accordance with Section 15.02 of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount or an integral multiple of $1,000 in excess thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after an applicable Special Interest Record Date and on or prior to the corresponding Special Interest Payment Date, accrued and unpaid Special Interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date.
In the case of Certificated Notes, the certificate numbers of the Notes to be repurchased are as set forth below: __________________________
Dated: ____________________
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| Signature(s) |
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| Social Security or Other Taxpayer |
| Identification Number |
Principal amount to be repurchased (if less than all): $______,000
NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatsoever.
Exhibit A- 12
Exhibit 10.1
Execution Version
PBF Energy Inc.
0% Exchangeable Senior Notes due 2032
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of September 17, 2026, is hereby entered into by PBF ENERGY INC., a Delaware corporation (the “Company”), WELLS FARGO SECURITIES, LLC, as representative (the “Representative”), of the several initial purchasers listed in Schedule A of the Purchase Agreement (as defined below) (collectively, the “Initial Holders” and, together with any Subsequent Holder (as defined in Section 6.1 of this Agreement) and any other person who beneficially owns Registrable Securities (as defined below) (including any person that has a beneficial interest in any Registrable Security in book-entry form), the “Holders” and, each individually, a “Holder”), and, solely for purposes of Articles IV and VI hereof, PBF HOLDING COMPANY LLC, a Delaware limited liability company and an indirect subsidiary of the Company (the “PBF Holding”), and PBF FINANCE CORPORATION, a Delaware corporation and a wholly owned subsidiary of PBF Holding (the “PBF Finance”) (together, the “Issuers”).
Reference is made to that certain Indenture, dated as of the date hereof, by and among the Company, the Issuers, the guarantors party thereto from time to time and U.S. Bank Trust Company, National Association, as trustee (the “Indenture”).
RECITALS
WHEREAS, on September 14, 2026, the Company, the Issuers and the Representative, on behalf of the Initial Holders, entered into a purchase agreement (the “Purchase Agreement”) whereby the Issuers agreed to issue and sell $550,000,000 aggregate principal amount of their 0% Exchangeable Senior Notes due 2032 (the “Exchangeable Notes”) to the Initial Holders (the “Notes”);
WHEREAS, pursuant to and subject to the terms and conditions set forth in the Indenture, each Note will be exchangeable, at the Holder’s option and subject to the Issuers’ election, into cash and, if applicable, shares of Class A common stock, par value $0.001 per share (“Common Stock” or the “Class A Common Stock”) of the Company, or a combination thereof, on the terms, and subject to the conditions, set forth in the Indenture; and
WHEREAS, in order to induce the Representative, on behalf of the Initial Holders, to enter into the Purchase Agreement and in satisfaction of a condition to the obligations of the Initial Holders thereunder, the Company has agreed to provide the registration rights with respect to the Registrable Securities (as defined below) set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
ARTICLE I
GENERAL
Section 1.1. Definitions. The following capitalized terms used herein have the following meanings:
“Adverse Disclosure” shall mean any pending corporate development, public filing with the Commission or any other material event that, in the reasonable judgment of the Company, makes it appropriate to suspend the availability of a Registration Statement and the related Prospectus.
“Automatic Shelf Registration Statement” shall mean a Registration Statement filed by a Well-Known Seasoned Issuer which shall become effective upon filing thereof pursuant to General Instruction I.D. of Form S-3.
“beneficially owns,” “beneficial ownership” and similar phrases have the same meanings as such terms have under Rule 13d-3 (or any successor rule then in effect) promulgated under the Exchange Act. For the avoidance of doubt, references herein to Registrable Securities as beneficially owned by a Holder shall include: (i) the Registrable Securities beneficially owned by such Holder and (ii) the Registrable Securities underlying the Notes beneficially owned by such Holder.
“Closing Date” shall mean the date of the first issuance of the Notes.
“Commission” means the Securities and Exchange Commission, or any other Federal agency then administering the Securities Act or the Exchange Act.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect from time to time.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency (which for the purposes of this Agreement shall include FINRA and the Commission), governmental commission, department, board, bureau, agency or instrumentality, court or tribunal.
“Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any Governmental Authority.
“Holder Questionnaire” means the form attached as Annex A to the Offering Memorandum and as Exhibit A to this Agreement.
“Law” means any statute, law, ordinance, rule, regulation or Governmental Order, in each case, of any Governmental Authority.
“Misstatement” means an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.
“Offering Memorandum” means the final offering memorandum, dated as of September 14, 2026, for the offering of the Notes.
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“Prospectus” means the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“register,” “registered” and “registration” mean a registration, including any related Shelf takedown, effected by preparing and filing a registration statement, prospectus or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registrable Securities” means (i) any shares of Class A Common Stock delivered or deliverable upon the exchange of Notes in accordance with, and subject to, the terms and conditions of the Indenture and (ii) any other equity security of the Company issued or issuable with respect to such shares of Class A Common Stock by way of stock split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event; provided, however, that, as to any particular Registrable Securities, such securities shall cease to be Registrable Securities upon the earliest to occur of: (A) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (B) such securities (x) are sold or otherwise transferred in a transaction (including, for the avoidance of doubt, a transaction that is registered under the Securities Act) following which such securities cease to be a “restricted security” (as defined in Rule 144); (y) are not identified by a “restricted” CUSIP or ISIN number; and (z) are not represented by any certificate that bears a legend restricting further transfer; (C) such securities shall have ceased to be outstanding, whether as a result of redemption, repurchase, cancellation, exchange or otherwise; and (D) such securities may be sold without registration pursuant to Rule 144 or any successor rule promulgated under the Securities Act (but with no volume limitations or restrictions as to manner of sale and without the requirement to be in compliance with Rule 144(c)(1)).
“Registration Expenses” shall mean the expenses of a Registration, including, without limitation, the following: (i) all registration and filing fees (including fees with respect to filings required to be made with FINRA) and any national securities exchange on which the Class A Common Stock is then listed; (ii) fees and expenses of compliance with securities or blue sky laws; (iii) word processing, printing, messenger, telephone and delivery expenses; (iv) fees and disbursements of counsel for the Company; (v) fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration (including the expenses of any audit and/or comfort letter and updates thereof); (vi) fees and expenses of any transfer agent or custodian; and (vii) all internal expenses of the Company; but excluding, for the avoidance of doubt, any selling expenses relating to the sale of Registrable Securities, such as any commissions, discounts and brokerage fees or spread in connection with the offer and sale of any Registrable Securities.
“Registration Statement” means a registration statement filed by the Company with the Commission in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities (other than a registration statement on Form S-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity), including the Initial Shelf Registration, any Subsequent Shelf Registration and any Post-Effective Amendment, including, any Automatic Shelf Registration Statement. For
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the avoidance of doubt, if at any time from the date hereof through the end of the Shelf Registration Period (as defined below), the Company is not eligible to use Form S-3 or Form S-3ASR or any successor form thereto, all references to Registration Statement and Shelf Registration Statement in this Agreement shall be read to include a registration statement on Form S-1, or any successor form thereto.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“Shelf” means the Initial Shelf Registration or any Subsequent Shelf Registration, as the case may be (including any Post-Effective Amendment thereto).
“Shelf Registration” means a registration of securities pursuant to a registration statement (including an Automatic Shelf Registration Statement) filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).
“Well-Known Seasoned Issuer” shall have the meaning set forth in Rule 405 under the Securities Act.
ARTICLE II
REGISTRATION STATEMENT
Section 2.1. Initial Shelf Registration.
The Company shall, on or prior to [December 31, 2026] (the “Filing Deadline”), (i) file with the Commission a Registration Statement for a Shelf Registration (which shall be, if the Company is then a Well-Known Seasoned Issuer, an Automatic Shelf Registration Statement) and/or (ii) file one or more prospectus supplements to an effective Shelf Registration Statement of the Company then in effect (such initial Shelf Registration Statement, as may be amended from time to time, the “Initial Shelf Registration”), in each case, covering the resale on a delayed or continuous basis of all Registrable Securities eligible for inclusion therein pursuant to this Section 2.1, from time to time pursuant to Rule 415 under the Securities Act or any similar rule that may be adopted by the Commission. The Company shall give written notice to the Representative and Holders in accordance with Section 6.2 hereof, at least ten (10) days prior to the proposed filing date of the Initial Shelf Registration, and the Company shall include in such Initial Shelf Registration all of the Registrable Securities then beneficially owned by the Holders who request inclusion therein by completing and returning a Holder Questionnaire (to the extent required pursuant to Section 3.3.1 hereof) at least three (3) business days prior to the filing of the Initial Shelf Registration. The Company will furnish a draft of the Initial Shelf Registration to the Representative and each Holder with Registrable Securities to be included therein for review at least two (2) business days in advance of filing the Initial Shelf Registration (it being understood that the Company shall be permitted to file the Initial Shelf Registration regardless of whether any Holder has completed its review thereof or provided affirmative confirmation to the Company to such effect). If the Shelf Registration Statement filed pursuant to this Section 2.1 is not an Automatic Shelf Registration Statement, the Company shall use commercially reasonable efforts to cause the Initial Shelf Registration to be declared effective as soon as practicable after filing, but in no event later than ninety (90) days after the earlier of the date the Initial Shelf Registration is filed with the Commission and the
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Filing Deadline. Such Initial Shelf Registration shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. Notwithstanding the foregoing, the Initial Shelf Registration will provide for a plan of distribution in customary form for resale registration statements of the type contemplated by this Agreement (including coverage for market transactions on a national securities exchange, privately negotiated transactions and transactions through broker-dealers acting as agent or principal, but not including underwritten public offerings). So long as a Holder delivers to the Company a completed Holder Questionnaire, such Holder shall not be identified as a statutory underwriter in the Initial Shelf Registration unless in response to a comment or request from the staff of the Commission or another regulatory agency; provided, however, that if the Commission requests that such Holder be identified as a statutory underwriter in the Initial Shelf Registration, such Holder will have an opportunity to withdraw from the Initial Shelf Registration. The Company shall use its commercially reasonable efforts to keep any Shelf Registration Statement continuously effective, supplemented and amended as required by the Securities Act (including by way of preparing and filing with the Commission within the time limits required by Rule 415 under the Securities Act or any successor rule thereto a new Shelf Registration Statement, and, if necessary, filing a new prospectus supplement pursuant to such new Shelf Registration Statement, in order to cover any Registrable Securities previously registered on a Shelf Registration Statement that may no longer be used for sales of such Registrable Securities, and the Company shall use its commercially reasonable efforts to cause such new Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter), in order to permit the Prospectus forming part thereof to be usable by Holders for a period (the “Shelf Registration Period”) from the date such Shelf Registration Statement is declared effective by the Commission (or becomes effective in the case of an Automatic Shelf Registration Statement) or, in the case of a “universal” Shelf Registration Statement, the first date a prospectus supplement covering Registrable Securities is filed under such Shelf Registration Statement until the earlier of (i) the 30th trading day immediately following the maturity date of the Notes (subject to extension for any suspension of the effectiveness of the Shelf Registration Statement during such 30 trading day period immediately following the maturity date by the length of such suspension) and (ii) the date upon which there are no Notes or Registrable Securities outstanding. The Company shall be deemed not to have used its commercially reasonable efforts to keep a Registration Statement effective during the Shelf Registration Period if it voluntarily takes any action that would result in Holders of Registrable Securities not being able to offer and sell such Registrable Securities at any time during the Shelf Registration Period, unless such action is (x) required by applicable Law or otherwise undertaken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets, and (y) permitted by Section 3.4.2 hereof.
Section 2.2. Subsequent Shelf Registration.
If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to, as promptly as is reasonably practicable, amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration
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(a “Subsequent Shelf Registration”) registering the resale on a delayed or continuous basis of all Registrable Securities of each Holder who requests inclusion therein by completing and returning a Holder Questionnaire (to the extent required pursuant to Section 3.3.1 hereof) within three (3) business days following delivery of notice by the Company to the Holders of the proposed filing of such Subsequent Shelf Registration in accordance with Section 3.3.1. If a Subsequent Shelf Registration is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof, it being understood that if such Subsequent Shelf Registration is an Automatic Shelf Registration Statement it shall become effective upon filing; provided, that if the Subsequent Shelf Registration is not an Automatic Shelf Registration Statement, the Company shall use commercially reasonable efforts to cause such Subsequent Shelf Registration to become or be declared effective as soon as practicable after filing but in any event no later than ninety (90) days after the date such Subsequent Shelf Registration is filed with the Commission, and (ii) keep such Subsequent Shelf Registration effective for the period required by Section 3.1.2.
Section 2.3. Subsequent Holders.
Section 2.3.1. Securities Previously Registered. Upon the written request (together with a completed Holder Questionnaire, to the extent required pursuant to Section 3.3.1 hereof) of any Holder that beneficially owns Registrable Securities that were previously included in the Initial Shelf Registration (or, if applicable, a Subsequent Shelf Registration), but are not then registered under the name of such Holder, the Company shall, subject to Section 3.4.2 hereof, use its commercially reasonable efforts to supplement the Initial Shelf Registration or Subsequent Shelf Registration, as the case may be, to include in such Registration Statement information regarding such Holder that is sufficient to permit the resale by such Holder of such Registrable Securities previously registered thereunder.
Section 2.3.2. Initial Registration of Securities. Upon the written request (together with a completed Holder Questionnaire, to the extent required pursuant to Section 3.3.1 hereof) of any Holder that beneficially owns Registrable Securities that were not included in the Initial Shelf Registration (or, if applicable, a Subsequent Shelf Registration) at the time of such request, the Company shall, subject to Section 3.4.2 hereof, use its commercially reasonable efforts to amend the Initial Shelf Registration or Subsequent Shelf Registration, as the case may be, to include such Registrable Securities (a “Post-Effective Amendment”); provided, however, that the Company shall not be required to so amend the Initial Shelf Registration or Subsequent Shelf Registration more than once every three (3) calendar months. Subject to the foregoing proviso, within five (5) business days after receiving such a written request pursuant to this Section 2.3.2, the Company shall give written notice of such request to the Representative and all Holders, and shall include in such Post-Effective Amendment (i) all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) business days after the Company’s giving of such notice and (ii) all Registrable Securities that were covered by the Initial Shelf Registration or Subsequent Shelf Registration, as the case may be; provided that if such Holder Questionnaire is delivered during a Deferral Period (as defined below), the Company shall so inform the Holder delivering such Holder Questionnaire and shall take the actions set forth in this Section 2.3 upon expiration of such Deferral Period in accordance with Section 3.4.2 hereof. For the avoidance of doubt, the Company shall not be required to include in such Post-Effective Amendment any Registrable Securities that are already covered by an existing and effective Registration Statement that may be utilized for the offer and sale of the Registrable Securities requested to be registered.
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ARTICLE III
REGISTRATION PROCEDURES
Section 3.1. Filings; Information.
In connection with any Shelf Registration Statement, the Company shall use its commercially reasonable efforts to effect the registration of all Registrable Securities as expeditiously as practicable, and in connection therewith:
Section 3.1.1. Filing Registration Statement. The Company shall prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies and which form shall be available for the sale of all Registrable Securities to be registered thereunder (which shall be, if the Company is then a Well-Known Seasoned Issuer, an Automatic Shelf Registration Statement), and in the event such Registration Statement is not an Automatic Shelf Registration Statement, shall use its commercially reasonable efforts to cause such Registration Statement to become effective, and in all events shall use its commercially reasonable efforts to keep it effective for the period required by Section 3.1.2.
Section 3.1.2. Amendments and Supplements; Maintenance. The Company shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements to such Registration Statement and the Prospectus used in connection therewith as may be reasonably requested by any Holder who beneficially owns Registrable Securities as may be necessary to keep such Registration Statement effective and in compliance with the provisions of the Securities Act in order to permit the Prospectus forming part thereof to be usable by Holders for the Shelf Registration Period.
Notwithstanding anything in this Section 3.1.2 to the contrary, if the Company receives any notification with respect to the suspension of the qualification of the Class A Common Stock included in any Registration Statement for sale in any jurisdiction, or if any proceeding for such purpose is initiated or threatened, the Company shall, after becoming aware thereof, promptly notify the Representative and the Holders thereof (which notice shall not contain any material non-public information) and shall use commercially reasonable efforts to obtain the withdrawal of any such suspension or the favorable resolution of any such proceeding as promptly as reasonably practicable. During any period in which such suspension or proceeding remains pending and unresolved (a “Blue Sky Suspension Period”), the Company shall not be required to maintain the effectiveness or availability of any Registration Statement solely with respect to offers and sales of Registrable Securities in such affected jurisdiction; provided, however, that (i) the Company shall continue to maintain the effectiveness and availability of such Registration Statement with respect to all other jurisdictions not so affected, (ii) no Blue Sky Suspension Period shall exceed forty-five (45) days and (iii) the aggregate duration of all Blue Sky Suspension Periods shall not exceed ninety (90) days in any twelve (12)-month period. For the avoidance of doubt, no Blue Sky Suspension Period shall constitute a termination of the Shelf Registration Period or otherwise relieve the Company of its obligations under Section 2.2 hereof.
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Section 3.1.3. Notification. After the filing of a Registration Statement, the Company shall promptly, and in no event more than five (5) business days after such filing, notify the Representative and the Holders who beneficially own Registrable Securities included in such Registration Statement of such filing, and when such Registration Statement or any post-effective amendment thereto has become effective (whether upon filing, in the case of an Automatic Shelf Registration Statement, or upon declaration of effectiveness by the Commission), and shall further notify the Representative and such Holders promptly and confirm such advice in writing of the occurrence of any of the following (collectively, “Blackout Events”): (i) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or any other lapse in effectiveness of the Registration Statement (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered) and (ii) an event requiring the preparation of a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such Prospectus will not contain a Misstatement (provided that in no event shall any such notice contain any material, non-public information).
Section 3.2. Registration Expenses.
The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Representative and the Holders that the Holders shall bear all selling expenses relating to the sale of Registrable Securities, such as any commissions, discounts and brokerage fees or spread, other than as set forth in the definition of “Registration Expenses.”
Section 3.3. Information.
Section 3.3.1. Holder Questionnaire. In connection with the filing of any Registration Statement, subject to notice by the Company to the Holders of the anticipated filing of such Registration Statement, each Holder (other than a Holder that has previously furnished to the Company a Holder Questionnaire, in each case solely to the extent that, at the time of such filing, the information furnished by such Holder in response to the Holder Questionnaire would be substantially the same as information previously furnished to the Company by such Holder) agrees to furnish to the Company a completed Holder Questionnaire. Other than as provided in Sections 2.1, 2.3.2 and 6.1 hereof and subject to the parenthetical in the immediately preceding sentence, the Company’s obligations to include any Registrable Securities beneficially owned by such Holder for resale in a Registration Statement are contingent upon such Holder executing and returning to the Company a Holder Questionnaire within three (3) business days following delivery of notice by the Company of the proposed filing of such Registration Statement.
Section 3.3.2. Additional Information. Upon written request, each Holder agrees to furnish to the Company any additional information regarding such Holder, the securities of the Company and/or its affiliates held by such Holder and the intended method of disposition of such shares of Class A Common Stock, which shall be limited to non-underwritten public offerings, as shall be reasonably requested by the Company that are necessary to effect the registration of such shares. Each Holder shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling shareholder in similar situations; provided, however, that the Holders shall not in connection with the foregoing be required to execute any lock-up or similar agreement.
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Section 3.3.3. Failure to Provide Information. Notwithstanding anything in this Agreement to the contrary, if any Holder fails to furnish to the Company a fully completed Holder Questionnaire within three (3) business days following delivery of notice by the Company of the proposed filing of the Registration Statement (to the extent such Holder Questionnaire was required to be furnished pursuant to Section 3.3.1 hereof and other than as provided in Sections 2.1, 2.3.2 and 6.1 hereof), or fails to provide such other information or execute such documents as contemplated by Section 3.3.2 hereof, the Company may exclude Registrable Securities beneficially owned by such Holder from the applicable Registration Statement or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary to effect the Registration. The Company shall not be required to include the Registrable Securities beneficially owned by a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages hereunder to any Holder in respect of Registrable Securities beneficially owned by such Holder that are excluded from a Registration Statement pursuant to this Section 3.3.3. The exclusion of any Registrable Securities as a result of this Section 3.3.3 shall not affect the registration of the other Registrable Securities to be included in such Registration.
Section 3.4. Misstatements; Restrictions on Registration Rights.
Section 3.4.1. Misstatements. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement (which notice shall not contain any material non-public information), each of the Holders shall forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement or Prospectus (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as reasonably practicable after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus may be resumed.
Section 3.4.2. Restrictions on Registration Rights. If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (a) require the Company to make an Adverse Disclosure, (b) require the inclusion in such Registration Statement of financial statements that are reasonably unavailable to the Company for reasons beyond the Company’s control, in its good faith judgment or (c) in the good faith judgment of the Company, be seriously detrimental to the Company and the Company concludes as a result that it is advisable to defer such filing, initial effectiveness or continued use at such time (each of clauses (a) through (c), a “Postponement Event”), the Company may, upon giving prompt written notice of such action to the Representative and all Holders (which notice shall not contain any material non-public information), delay the filing or initial effectiveness of, or suspend the use of, such Registration Statement for the shortest period of time, but in no event more than forty-five (45) days in any 90-day period, determined in good faith by the Company to be reasonably necessary for such purpose (any such period, a “Deferral Period”); provided, however, that the Company shall not extend the Deferral Period for more than ninety (90) days in any 12-month period; provided, further, that, if the event triggering the Deferral Period relates to a proposed or pending material business transaction, the disclosure of which the Company concludes in good faith would be reasonably likely to impede the ability to consummate the transaction or would otherwise be seriously detrimental to the Company and its subsidiaries taken as a whole, the Company may extend the Deferral Period from forty-five (45) days to sixty (60) days in any 90-day period or from ninety (90) days to one hundred twenty (120) days in any 12-month period. In the event the Company exercises its rights under this Section 3.4.2, each Holder agrees to suspend, immediately upon its receipt of the suspension notice referred to above, its use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities until the date the Company provides written notice to such Holder that it may resume use of such Registration Statement.
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Section 3.5. Exchange Act.
As long as any Holder shall beneficially own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, shall use commercially reasonable efforts to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company pursuant to Sections 13(a) or 15(d) of the Exchange Act.
Section 3.6. Broker Sales.
Section 3.6.1. Concurrent with Exchange. In connection with any proposed exchange of a Holder’s Notes pursuant to the Indenture, if such Holder proposes to transfer, substantially concurrently with the settlement of such exchange, any shares of Class A Common Stock that are deliverable upon the exchange of such Notes by delivering a prospectus that forms a part of a Registration Statement pursuant to which shares of Class A Common Stock are registered, through a broker or brokerage firm, in an open market transaction or otherwise (a “Broker Sale”), such Holder (i) shall promptly provide written notice to the Company at least one (1) business day prior to effecting such Broker Sale and (ii) shall not effect such Broker Sale with respect to any shares of Class A Common Stock to the extent the Issuers elect to settle the exchange of the applicable Notes in accordance with the terms of the Indenture by delivering solely cash.
Section 3.6.2. Postponement. No Holder shall effect any Broker Sale during any Postponement Event or Blackout Event that such Holder has knowledge of by virtue of receipt of any notice contemplated by Section 3.4.2 hereof or Section 3.1.3 hereof, respectively.
ARTICLE IV
REGISTRATION DEFAULTS
Section 4.1. Registration Defaults. If any of the following events shall occur as a result of the Company’s failure to satisfy its obligations hereunder (each of the events set forth in clauses (a) through (d) below, a “Registration Default”), then the Issuers shall pay special interest on the Notes (“Registration Default Special Interest”) to the Holders of the Notes in accordance with the terms of the Indenture as follows:
(a) if (x) a Shelf Registration Statement (which shall be, if the Company is then a Well-Known Seasoned Issuer, an Automatic Shelf Registration Statement) or a prospectus supplement to an effective Shelf Registration Statement of the Company is not filed with the Commission and/or (y) has not been declared or become effective, as the case may be, within the timeframes required under Section 2.1, after giving effect to any extensions as set forth therein, Registration Default Special Interest shall accrue on the aggregate outstanding principal amount of the Notes at a rate of 0.25% per annum to and including the 90th day following such Registration Default, and 0.50% per annum thereafter; or
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(b) if the Initial Shelf Registration or Subsequent Shelf Registration has been declared or becomes effective but later ceases to be effective or available for the offer and sale of the Registrable Securities, other than (1) in connection with a Deferral Period or (2) as a result of a requirement to file a new Shelf Registration Statement, a Post-Effective Amendment or supplement to the Prospectus to make changes to the information regarding selling securityholders or the plan of distribution provided for therein, at any time during the Shelf Registration Period and the Company does not cure the lapse of effectiveness or availability within 10 business days (or within 10 business days following the expiration of such Deferral Period or within the timeframe contemplated under Section 2.3.2 for filing a Post-Effective Amendment, as the case may be), then Registration Default Special Interest shall accrue on the aggregate outstanding principal amount of the Notes at a rate of 0.25% per annum to and including the 90th day following such Registration Default, and 0.50% per annum thereafter; or
(c) if the Company through its omission fails to name a Holder as a selling securityholder and such Holder had complied timely with its obligations hereunder in a manner to entitle such Holder to be so named in (1) the Initial Shelf Registration or, if applicable, a Subsequent Shelf Registration at the time it first became effective or (2) any Prospectus at the later of (x) the time of filing thereof and (y) the time the Initial Shelf Registration or Subsequent Shelf Registration, as applicable, of which the Prospectus forms a part became or was declared effective, then Registration Default Special Interest shall accrue, on the aggregate outstanding principal amount of the Notes held by such Holder (and only such Holder), at a rate of 0.25% per annum to and including the 90th day following such Registration Default, and 0.50% per annum thereafter, from and including the day following the effective date of such Initial Shelf Registration or Subsequent Shelf Registration or the time of filing of such Prospectus, as the case may be, which Registration Default Special Interest shall be payable by the Issuers separately to such Holder at the account specified in writing by such Holder (and only such Holder) to the Issuers; or
(d) if the aggregate duration of Deferral Periods in any period exceeds the number of days permitted in respect of such period pursuant to Section 3.4.2 hereof, then commencing on the day the aggregate duration of Deferral Periods in any period exceeds the number of days permitted in respect of such period, Registration Default Special Interest shall accrue on the aggregate outstanding principal amount of the Notes at a rate of 0.25% per annum to and including the 90th day following such Registration Default, and 0.50% per annum thereafter; provided, however, that (1) upon the filing and/or effectiveness (whether upon such filing or otherwise) of the Initial Shelf Registration or Subsequent Shelf Registration (in the case of paragraph (a)(x) or (a)(y) above, as applicable), (2) upon such time as the Initial Shelf Registration or a Subsequent Shelf Registration which had ceased to remain effective or available for resales again becomes effective and available for resales (in the case of paragraph (b) above), (3) upon the time such Holder is permitted to sell its Registrable Securities pursuant to any Initial Shelf Registration or Subsequent Shelf Registration and Prospectus in accordance with applicable Law (in the case of paragraph (c) above), or (4) upon the termination of the Deferral Period that caused the limit on the aggregate duration of Deferral Periods in a period set forth in Section 3.4.2 to be exceeded (in the case of paragraph (d) above), Registration Default Special Interest shall immediately cease to accrue.
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Section 4.2. Payment of Registration Default Special Interest. Any amounts of Registration Default Special Interest due pursuant to this Article IV will be payable in arrears on each Interest Payment Date (as defined in the Indenture) following accrual in the same manner as regular interest on the Notes as described in the Indenture and shall be in addition to any remedy relating to the failure to comply with the Issuers’ obligations under Section 4.06(b) of the Indenture. If any Note ceases to be outstanding during any period for which Registration Default Special Interest is accruing (other than as a result of the Holder exercising its exchange rights pursuant to Article 14 of the Indenture), the Issuers will prorate the Registration Default Special Interest payable with respect to such Note.
The Registration Default Special Interest rate on the Notes shall not exceed in the aggregate 0.50% per annum and shall not be payable under more than one clause of Section 4.1 hereof for any given period of time. Other than the Company’s obligations to pay Registration Default Special Interest in accordance with this Article IV, neither the Company nor the Issuers will have any liability for damages with respect to a Registration Default or other obligations under this Agreement.
Notwithstanding any provision in this Agreement, (x) in no event shall Registration Default Special Interest accrue or be payable to holders of Class A Common Stock issued upon exchange of Notes and (y) if a Registration Default occurs after a Holder has exchanged its Notes for Class A Common Stock, such Holder shall not be entitled to any Registration Default Special Interest with respect to such Class A Common Stock.
ARTICLE V
INDEMNIFICATION AND CONTRIBUTION
Section 5.1. Indemnification by the Company.
The Company agrees to indemnify and hold harmless each Holder that beneficially owns Registrable Securities that are covered by any Registration Statement, and each of its respective directors, officers, employees, and agents, and each person who controls such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and each affiliate of such Holder (within the meaning of Rule 405 under the Securities Act) (each, a “Holder Indemnified Party”), from and against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, any reasonable and documented attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) that arise out of or are based on any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Company will not be liable in any such case to the extent that any such losses, claims, damages, liabilities and expenses arise out of or are based upon any untrue statement or allegedly untrue statement or omission or alleged omission made in such Registration Statement, Prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by such Holder, or a Holder Indemnified Party on behalf of such Holder, expressly for use therein; provided, however, that no Holder Indemnified Party shall be entitled to recover the same losses, claims, damages, liabilities or expenses (or actions in respect thereof) more than once, and to the extent any Holder Indemnified Party has received payment in respect of any such losses, claims, damages, liabilities or expenses (or actions in respect thereof) under the Purchase Agreement, the indemnification obligations of the Company under this Section 5.1 with respect to such losses, claims, damages, liabilities or expenses shall be reduced by the amount of such payment.
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Section 5.2. Indemnification by Holders of Registrable Securities.
Each selling Holder that beneficially owns Registrable Securities that are covered by any Registration Statement agrees, severally but not jointly, to indemnify and hold harmless the Company, its directors, officers, agents and employees and each person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and each affiliate of the Company (within the meaning of Rule 405 under the Securities Act) from and against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, any reasonable and documented attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) that arise out of or are based on any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that such Holder will only be liable to the extent that any such losses, claims, damages, liabilities and expenses arise out of or are based upon any untrue statement or allegedly untrue statement or omission or alleged omission made in such Registration Statement, Prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by such Holder, expressly for use therein. In no event shall the liability of a Holder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of shares of Class A Common Stock giving rise to such indemnification obligation. This indemnity agreement shall be acknowledged by each Holder in such Holder’s Holder Questionnaire and shall be in addition to any liability that any such Holder may otherwise have.
Section 5.3. Conduct of Indemnification Proceedings.
Promptly after receipt by any person of any notice of any loss, claim, damage or liability or any action in respect of which indemnity may be sought pursuant to Section 5.1 or 5.2, such person (the “Indemnified Party”) shall, if a claim in respect thereof is to be made against any other person for indemnification hereunder, promptly notify such other person (the “Indemnifying Party”) in writing of the loss, claim, judgment, damage, liability or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but no more than one such separate counsel) to represent the Indemnified Party and its controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be
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sought by the Indemnified Party against the Indemnifying Party, with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written advice of counsel of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. No Indemnified Party shall, without the prior written consent of the Indemnifying Party (not to be unreasonably withheld), consent to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.
Section 5.4. Contribution.
If the indemnification provided for in the foregoing Sections 5.1, 5.2 and 5.3 is unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage, liability or action in such proportion as is appropriate to reflect the relative benefits received by such Indemnifying Party, on the one hand, and such Indemnified Party, on the other hand, from the offering of the Notes and the Registration Statement which resulted in such loss, claim, damage, liability or action; provided, however, that in no event shall the liability of a Holder be greater in amount than the dollar amount of the net proceeds received by such Holder upon sale of shares of Class A Common Stock giving rise to such contribution obligation. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Indemnifying Party and the Indemnified Party shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Indemnifying Parties and the Indemnified Parties in connection with the actions or omissions which resulted in such loss, claim, damage, liability or action, as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the initial offering of the Notes (before deducting expenses). Benefits received by any Holder that is an initial purchaser under the Purchase Agreement shall be deemed to be equal to such initial purchaser’s pro rata share of the total initial purchaser discount as set forth in the Purchase Agreement, and benefits received by any other Holders shall be deemed to be equal to the value of receiving Registrable Securities registered under the Securities Act. The relative fault of any Indemnified Party and any Indemnifying Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such Indemnified Party or such Indemnifying Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 5.4. Notwithstanding the provisions of this Section 5.4, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
14
ARTICLE VI
MISCELLANEOUS
Section 6.1. Assignment; No Third Party Beneficiaries.
Subject to the terms and conditions of the Indenture, any contractual restrictions on transfer and compliance with applicable securities Laws, at any time prior to the redemption, exchange, maturity or repurchase of a given Note, this Agreement and the rights, duties and obligations hereunder conferred to the Holder of such Note or any other person who beneficially owns Registrable Securities shall inure to the benefit of and be binding upon its successors, permitted assignees and transferees, including, without the need for an express assignment, a Subsequent Holder. Any such successor, permitted assignee or transferee of a Note (to the extent not an Initial Holder) (including any transferee that has a beneficial interest in any Registrable Security in book-entry form, a “Subsequent Holder”) shall, in order for the Registrable Securities beneficially owned by such Subsequent Holder, to be included in any Registration Statement filed pursuant to the terms of this Agreement, furnish to the Company a completed Holder Questionnaire, either (i) prior to or in connection with an exchange of Notes by such Subsequent Holder in accordance with the Indenture or (ii) within the timeframe required under Section 3.3.1 hereof or (iii) in accordance with Section 2.2 or (iv) in accordance with Section 2.3 hereof.
Notwithstanding the foregoing and for the avoidance of doubt, this Agreement shall not confer any rights or benefits upon (i) an Initial Holder or any Subsequent Holder of a Note that is redeemed or repurchased by the Issuers, repaid at final maturity or exchanged in a private transaction for cash, shares of Class A Common Stock or a combination of cash and shares of Class A Common Stock (unless particularly and agreed to by the Company and the Issuers and such holder in the agreement governing such exchange), or (ii) any person or entity to whom an Initial Holder or any Subsequent Holder transfers shares of Class A Common Stock that are issued and outstanding and are not Registrable Securities. This Agreement is not intended to confer any rights or benefits on any persons that are not party hereto other than as expressly set forth in Article V hereof and this Section 6.1.
Section 6.2. Notices.
All notices, demands, requests, consents, approvals or other communications (collectively, “Notices”) required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing (which shall include e-mail and, where applicable, communication through the applicable procedures of the Depositary (as defined in the Indenture)). Notice otherwise sent as provided herein shall be deemed given on the next business day following timely delivery of such notice to a reputable air courier service with an order for next-day delivery.
To the Company or the Issuers:
c/o PBF Energy Inc.
One Sylvan Way, Second Floor
Parsippany, New Jersey 07054
Attention: Trecia Canty
E-mail: [email protected]
15
with a copy to:
Herbert Smith Freehills Kramer (US) LLP
1177 Avenue of the Americas
New York, New York 10036
Attention: Todd E. Lenson
E-mail: [email protected]
To the Representative or a Holder: to the address or contact information (including e-mail) set forth in the Company’s books and records; provided, that notices and other communications to Holders of Notes held in global form may be provided through the applicable procedures of the Depositary.
Section 6.3. Severability.
This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.
Section 6.4. Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission shall constitute valid and sufficient delivery thereof.
Section 6.5. Entire Agreement.
This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto and thereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written.
Section 6.6. Modifications, Amendments and Waivers.
Upon the written consent of (a) the Company and (b) the Holders of a majority of the total Registrable Securities, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that in the event any such waiver, amendment or modification would be disproportionate and adverse in any material respect to the material rights or obligations hereunder of a Holder, the written consent of such Holder will also be required; provided further, that the Company may amend or modify this Agreement without the consent of any Holder to conform the text of this Agreement to any provision of the “Description of Notes” section of the Offering Memorandum, to the extent that such provision in the “Description of Notes” was intended to be a verbatim recitation of a provision of this Agreement.
16
Section 6.7. Term.
This Agreement shall terminate with respect to any Holder on the date that such Holder no longer beneficially owns any Registrable Securities; provided that the provisions of Article V shall survive the sale by such Holder of securities covered by a Registration Statement.
Section 6.8. Governing Law.
THIS AGREEMENT, AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON, ARISING OUT OF, OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT THE APPLICATION OF LAWS OF ANOTHER JURISDICTION.
Section 6.9. Jurisdiction; Waiver of Trial by Jury.
Each party to this Agreement hereby expressly and irrevocably (i) submits to the non-exclusive jurisdiction of the federal and state courts sitting in the Borough of Manhattan in the City of New York in any suit or proceeding arising out of or relating to this Agreement, and (ii) waives (a) its right to a trial by jury in any legal action or proceeding relating to this Agreement or any course of conduct, course of dealing, statements (whether verbal or written) or actions of the other parties hereto and for any counterclaim related to any of the foregoing and (b) any objection which it may have or hereafter may have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum. The Issuers irrevocably appoint the Company, located at 1 Sylvan Way, Second Floor, Parsippany, New Jersey 07054, as their authorized agent in the Borough of Manhattan in the City of New York upon which process may be served in any such suit or proceeding, and agree that service of process upon such agent, and written notice of said service to the Company and the Issuers by the person serving the same to the address in accordance with Section 6.2, shall be deemed in every respect effective service of process upon the Company and the Issuers in any such suit or proceeding. The Company and the Issuers further agree to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of seven years from the date of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their duly authorized representatives as of the date first written above.
| Company: | ||||
| PBF ENERGY INC. | ||||
| By: | /s/ Trecia Canty | |||
| Name: | Trecia Canty | |||
| Title: | Senior Vice President, General Counsel & Secretary | |||
| Issuers: | ||||
| PBF HOLDING COMPANY LLC | ||||
| By: | /s/ Trecia Canty | |||
| Name: | Trecia Canty | |||
| Title: | Senior Vice President, General Counsel & Secretary | |||
| PBF FINANCE CORPORATION | ||||
| By: | /s/ Trecia Canty | |||
| Name: | Trecia Canty | |||
| Title: | Senior Vice President, General Counsel & Secretary | |||
[Signature Page to PBF Energy Inc.
Registration Rights Agreement]
| WELLS FARGO SECURITIES, LLC | ||||
| For itself and as Representative of the Initial Holders | ||||
| By: | /s/ Craig McCracken | |||
| Name: | Craig McCraken | |||
| Title: | Managing Director | |||
[Signature Page to PBF Energy Inc.
Registration Rights Agreement]
EXHIBIT A
Form of Selling Securityholder Questionnaire
The purpose of this questionnaire is to obtain information to be used by PBF Energy Inc. (the “Company”) to complete a registration statement (the “Registration Statement”) covering the resale of certain shares of Class A common stock currently outstanding and/or to be issued upon exchange of PBF Holding Company LLC’s and PBF Finance Corporation’s 0% Exchangeable Senior Notes due 2032 (the “Notes”), as contemplated by that certain Registration Rights Agreement among the Company, the Issuers and the Initial Holders. A copy of the Registration Rights Agreement is available from the Representative upon request at [email protected]. Capitalized terms not defined herein have the meanings assigned to such terms in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the benefits of the Registration Rights Agreement. In order to sell or otherwise dispose of any Registrable Securities pursuant to the Registration Statement, a beneficial owner of Registrable Securities generally will be required to be named as a Selling Securityholder (as defined below) in the related prospectus, deliver a prospectus to purchasers of Registrable Securities and be bound by those provisions of the Registration Rights Agreement applicable to such beneficial owner (including certain indemnification provisions as described below). Beneficial owners are encouraged to complete, execute and deliver this Selling Securityholder Questionnaire prior to the effectiveness of the Shelf Registration Statement so that such beneficial owners may be named as Selling Securityholders in the related prospectus at the time of effectiveness. Any beneficial owner of Registrable Securities wishing to include its Registrable Securities in the Registration Statement must deliver to the Company a properly completed and signed Selling Securityholder Questionnaire.
Certain legal consequences arise from being named as Selling Securityholders in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own legal counsel regarding the consequences of being named or not being named as a Selling Securityholder in the Registration Statement and the related prospectus.
The undersigned beneficial owner (the “Selling Securityholder”) of Registrable Securities hereby gives notice to the Company of its intention to sell or otherwise dispose of Registrable Securities beneficially owned by it and listed below pursuant to the Registration Statement. The undersigned, by signing and returning this Selling Securityholder Questionnaire, understands that it will be bound by the terms and conditions of this Selling Securityholder Questionnaire and the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has agreed to indemnify and hold harmless the Company and each of its directors and officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and each affiliate of the Company (within the meaning of Rule 405 under the Securities Act), from and against any and all losses arising out of or based upon any untrue or alleged untrue statements concerning the undersigned made in the Registration Statement or the related prospectus in reliance upon the information provided in this Selling Securityholder Questionnaire.
Please answer all questions fully. Do not leave questions blank – if the answer to any question is “Not Applicable,” please indicate by marking “N/A.” If there is any question about which you have any doubt, please set forth the relevant facts in your answer.
PLEASE COMPLETE AND RETURN THIS QUESTIONNAIRE AS SOON AS POSSIBLE TO THE REPRESENTATIVE OF PBF ENERGY AT [email protected].
Failure to return the questionnaire may result in the exclusion of your name and shares of Class A common stock from the Registration Statement. The Company is under no obligation to name any beneficial owner that has not delivered a completed Selling Securityholder Questionnaire as a Selling Securityholder in any Registration Statement or related Prospectus, and no beneficial owner that has not delivered a completed Selling Securityholder Questionnaire will be permitted to sell Registrable Securities pursuant to any Registration Statement.
| 1. | Please set forth your name and address. |
Full legal/entity name:
Address:
| 2. | Please state the total number of currently outstanding shares of Class A common stock that you beneficially own* and the form of ownership and the date that you acquired such shares of Class A common stock. Include shares registered in your name individually or jointly with others and shares held in the name of a bank, broker, nominee, depository or in “street name” for your account. (DO NOT list shares of Class A common stock issuable on the exchange of Notes. See Question #3). |
Number of shares: _______ Date acquired: _______, 20
Form of ownership: _______
| 3. | Please list the total number of shares of Class A common stock that would be issuable to you upon the exchange of all Notes that you beneficially own* or state the aggregate principal amount of all Notes that you beneficially own*. |
Number of shares: _______
or
Aggregate principal amount of Notes: $_______
| 4. | If you are a limited liability company or limited partnership, please name the managing member or general partner and each person controlling such managing member or general partner. |
A-2
| 5. | If you are an entity, please identify the natural person(s) who exercise sole or shared voting power* and/or sole or shared investment power* with regard to the shares of Class A common stock listed under Question #2 and Question #3. |
| 6. | Please advise whether you are a registered broker-dealer or an affiliate* thereof. If you are an affiliate of a registered broker-dealer, please explain the nature of the affiliation and disclose whether you acquired the shares in the ordinary course of business and whether at the time of the acquisition you had any plans or proposals, directly or with any other person, to distribute the shares of Class A common stock listed under Question #2 and Question #3. |
| 7. | List below the nature of any position, office or other material relationship that you have, or have had within the past three years, with the Company or any of its predecessors or affiliates*. |
| 8. | If you expressly wish to disclaim any beneficial ownership* of any shares of Class A common stock listed under Question #2 for any reason in the Registration Statement, indicate below the shares and circumstances for disclaiming such beneficial ownership*. |
A-3
The undersigned acknowledges that it understands its obligation to comply with the provisions of the Exchange Act and the rules thereunder relating to stock manipulation, particularly Regulation M thereunder (or any successor rules or regulations), in connection with any offering of Registrable Securities pursuant to the Registration Statement. The undersigned agrees that neither it nor any person acting on its behalf will engage in any transaction in violation of such provisions. The Selling Securityholder hereby acknowledges its obligations under the Registration Rights Agreement to indemnify and hold harmless certain persons set forth therein. The undersigned acknowledges that it will hold in confidence any notice received from the Company of the suspension of the availability of any Registration Statement pursuant to Section 3.4.2 of the Registration Rights Agreement, and shall not disclose the existence of such notice to any third party other than as required by applicable law.
In the event any Selling Securityholder transfers all or any portion of the Registrable Securities listed in Item 3 above after the date on which such information is provided to the Company, the Selling Securityholder will notify the transferee(s) at the time of transfer of its rights and obligations under this Selling Securityholder Questionnaire and the Registration Rights Agreement.
The undersigned hereby furnishes the foregoing information for use by the Company in connection with the preparation of the Registration Statement. The undersigned will notify the Company, at the e-mail address specified above, in writing immediately of any changes in the foregoing answers that should be made as a result of any developments occurring prior to the time that all the shares of Class A common stock of the Company are sold pursuant to the Registration Statement referred to above. Otherwise, the Company is to understand and be entitled to rely on that the above information continues to be, to the best of the undersigned’s knowledge, information and belief, complete and correct.
Once this Selling Securityholder Questionnaire is executed by the Selling Securityholder and received by the Company, the terms of this Selling Securityholder Questionnaire and the representations and warranties contained herein shall be binding on, shall inure to the benefit of, and shall be enforceable by the respective successors, heirs, personal representatives and assigns of the Company and the Selling Securityholder with respect to the Registrable Securities beneficially owned by such Selling Securityholder and listed above. This Selling Securityholder Questionnaire shall be governed by, and construed in accordance with, the Laws of the State of New York without regard to the conflicts-of-laws provisions thereof.
Dated: ________, 20__
| By: |
| |
| Name: |
| |
| Title: |
|
| * | See Appendix A for definitions |
A-4
Appendix A
CERTAIN TERMS USED IN QUESTIONNAIRE
AFFILIATE
An “affiliate” of a company is a person that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, such company.
BENEFICIAL OWNERSHIP
A person “beneficially owns” a security if such person, directly or indirectly, has or shares voting power or investment power of such security, whether through a contract, arrangement, understanding, relationship or otherwise. A person is also the beneficial owner of a security if he has the right to acquire beneficial ownership at any time within 60 days through the exercise of any option, warrant or right, or the power to revoke a trust, discretionary account or similar arrangement.
INVESTMENT POWER
“Investment power” includes the power to dispose, or to direct the disposition of, a security.
VOTING POWER
“Voting power” includes the power to vote, or to direct the voting of, a security.
Exhibit 10.2
[DEALER]1
[__], 2026
To: PBF Holding Company LLC
PBF Finance Corporation
One Sylvan Way
Second Floor
Parsippany, NJ 07054
Attention: General Counsel
Re: [Base][Additional] Call Option Transaction
The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the call option transaction entered into between [DEALER] (“Dealer”) and each of PBF Holding Company LLC and PBF Finance Corporation, acting jointly and severally (together, “Counterparty”) as of the Trade Date specified below (the “Transaction”). PBF Energy Inc. (“Parent”) is also a party to this Confirmation in its limited capacity as set forth herein. This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. Each party further agrees that this Confirmation together with such ISDA Master Agreement evidence a complete binding agreement between Counterparty and Dealer as to the subject matter and terms of the Transaction to which this Confirmation relates, and shall supersede all prior or contemporaneous written or oral communications with respect thereto.
The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”) are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated [__], 2026 (the “Offering Memorandum”) relating to the [__]% Exchangeable Senior Notes due 2032 (as originally issued by Counterparty, the “Exchangeable Notes” and each USD 1,000 principal amount of Exchangeable Notes, an “Exchangeable Note”) issued by Counterparty in an aggregate initial principal amount of USD [500,000,000] (as increased by [up to]2 an aggregate principal amount of USD [50,000,000] [if and to the extent that]3[pursuant to the exercise by]4 the Initial Purchasers (as defined herein) [exercise]5[of]6 their option to purchase additional Exchangeable Notes pursuant to the Purchase Agreement (as defined herein)) pursuant to an Indenture [to be]7 dated [__], 2026 among Counterparty, Parent, the guarantors from time to time party thereto and U.S. Bank Trust Company, National Association, as trustee (the “Indenture”). In the event of any inconsistency between the terms defined in the Offering Memorandum, the Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that this Confirmation is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture which are also defined herein by reference to the Indenture and (ii) sections of the Indenture that are referred to herein will conform to the descriptions thereof in the Offering Memorandum. If any such definitions in the Indenture or any such sections of the Indenture differ from the descriptions thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern for purposes of this Confirmation. The parties further acknowledge that the Indenture section numbers used herein are based on the [draft of the Indenture last reviewed by Dealer as of the date of this Confirmation, and if any such section numbers are changed in the Indenture as executed, the parties will amend this Confirmation in good faith to preserve the intent of the parties]8[Indenture as executed]9. Subject to the foregoing, references to the Indenture herein are references to the Indenture as in effect on the date of its execution, and if the Indenture is amended or supplemented following such
| 1 | [NTD: Include Dealer name, address and, if applicable, logo.] |
| 2 | Include in the Base Call Option Confirmation. |
| 3 | Include in the Base Call Option Confirmation. |
| 4 | Include in the Additional Call Option Confirmation. |
| 5 | Include in the Base Call Option Confirmation. |
| 6 | Include in the Additional Call Option Confirmation. |
| 7 | Insert if Indenture is not completed at the time of the Confirmation. |
| 8 | Include in the Base Call Option Confirmation. Include in the Additional Call Option Confirmation if it is executed before closing of the base deal. |
| 9 | Include in the Additional Call Option Confirmation, but only if the Additional Call Option Confirmation is executed after closing of the base deal. |
date (other than any amendment or supplement (x) pursuant to Section [10.01(j)]1011 of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Exchangeable Notes in the Offering Memorandum or (y) pursuant to Section [14.07]12 of the Indenture, subject, in the case of this clause (y), to the second paragraph under “Method of Adjustment” in Section 3), any such amendment or supplement will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.
Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.
1. This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Counterparty had executed an agreement in such form on the Trade Date, but without any Schedule except for (i) the election of the laws of the State of New York as the governing law (without reference to choice of law doctrine); (ii) in respect of Section 5(a)(vi) of the Agreement, the election that the “Cross Default” provisions shall apply to Dealer with (a) a “Threshold Amount” with respect to Dealer of three percent of the shareholders’ equity of [Dealer][[Dealer Parent] (“Dealer Parent”)] as of the Trade Date, (b) the deletion of the phrase “, or becoming capable at such time of being declared,” from clause (1) and (c) the following language added to the end thereof: “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational nature, (y) funds were available to enable the party to make the payment when due and (z) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”; (iii) the modification that the term “Specified Indebtedness” shall have the meaning specified in Section 14 of the Agreement, except that such term shall not include obligations in respect of deposits received in the ordinary course of a party’s banking business; and (iv) the modification that following the payment of the Premium, the condition precedent in Section 2(a)(iii) of the Agreement with respect to Events of Default or Potential Events of Default shall not apply to a payment or delivery owing by Dealer to Counterparty. In the event of any inconsistency between provisions of the Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement.
2. The terms of the particular Transaction to which this Confirmation relates are as follows:
| General Terms. |
||
| Trade Date: |
[__], 2026 | |
| Effective Date: |
The closing date of the [initial]13 issuance of the Exchangeable Notes [issued pursuant to the option to purchase additional Exchangeable Notes exercised on the date hereof]14 | |
| Option Style: |
“Modified American”, as described under “Procedures for Exercise” below | |
| Option Type: |
Call | |
| Buyer: |
Counterparty | |
| 10 | [NTD: Indenture cross references and related definitions subject to review.] |
| 11 | Include cross-reference to Indenture section permitting amendments without holder consent to conform the Indenture to the Description of Notes. |
| 12 | Include cross-reference to Indenture section relating to Specified Corporate Events. |
| 13 | Include in the Base Call Option Confirmation. |
| 14 | Include in the Additional Call Option Confirmation. |
2
| Seller: |
Dealer | |
| Issuer: |
Parent | |
| Shares: |
The Class A common stock of Parent, par value USD 0.001 per share (Exchange symbol “PBF”). | |
| Number of Options: |
[_______]15. For the avoidance of doubt, the Number of Options shall be reduced by any Options exercised by Counterparty. In no event will the Number of Options be less than zero. | |
| Applicable Percentage: |
[__]% | |
| Option Entitlement: |
A number equal to the product of the Applicable Percentage and [______]16. | |
| Strike Price: |
USD [______] | |
| Cap Price: |
USD [______] | |
| Premium: |
USD [______] | |
| Premium Payment Date: |
The Effective Date | |
| Exchange: |
The New York Stock Exchange | |
| Related Exchange(s): |
All Exchanges | |
| Excluded Provisions: |
Section [14.04(i)]17 and Section [14.03]18 of the Indenture. | |
| Procedures for Exercise. |
||
| Exchange Date: |
With respect to any exchange of an Exchangeable Note (other than (x) any exchange of Exchangeable Notes with an Exchange Date occurring prior to the Free Exchangeability Date or (y) any exchange of an Exchangeable Note in respect of which the “Holder” (as such term is defined in the Indenture) of such Exchangeable Note would be entitled to an increase in the Exchange Rate pursuant to Section [14.03]19 of the Indenture (any such exchange described in clause (x) or clause (y), an “Early Exchange”), to which the provisions of Section 9(i)(i) of this Confirmation shall apply), the date on which the “Holder” (as such term is defined in the Indenture) of such Exchangeable Note satisfies all of the requirements for exchange thereof as set forth in Section [14.02(b)] 20 of the Indenture); provided that no Exchange Date shall be deemed to have occurred with respect to Exchanged Securities. | |
| 15 | For the Base Call Option Confirmation, this is equal to the number of Exchangeable Notes in principal amount of $1,000 initially issued on the closing date for the Exchangeable Notes. For the Additional Call Option Confirmation, this is equal to the number of additional Exchangeable Notes in principal amount of $1,000. |
| 16 | Insert the initial Exchange Rate for the Exchangeable Notes. |
| 17 | Include cross-reference to section(s) of the Indenture containing discretionary adjustments to the Exchange Rate by Counterparty. |
| 18 | Include cross-reference to Indenture section(s) dealing with make-whole adjustments to the Exchange Rate. |
| 19 | Include cross-reference to Indenture section(s) dealing with make-whole adjustments to the Exchange Rate. |
| 20 | Include cross-reference to section(s) of the Indenture setting forth the requirements for exchange of the Exchangeable Notes. |
3
| Free Exchangeability Date: |
October 15, 2031 | |
| Exchanged Securities: |
With respect to any Exchange Date, any Exchangeable Notes with respect to which Counterparty makes the election described in Section [14.02(j)]21 of the Indenture and the financial institution designated by Counterparty accepts such Exchangeable Notes in accordance with Section [14.02(j)] of the Indenture, as long as Counterparty does not submit a Notice of Exercise in respect thereof. | |
| Expiration Time: |
The Valuation Time | |
| Expiration Date: |
January 15, 2032, subject to earlier exercise. | |
| Multiple Exercise: |
Applicable, as described under “Automatic Exercise” and “Automatic Exercise of Remaining Repurchase Options After Free Exchangeability Date” below. | |
| Automatic Exercise: |
Notwithstanding Section 3.4 of the Equity Definitions, on each Exchange Date occurring on or after the Free Exchangeability Date, in respect of which a “Notice of Exchange” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant exchanging “Holder”, a number of Options equal to [(i)] the number of Exchangeable Notes in denominations of USD 1,000 as to which such Exchange Date has occurred [minus (ii) the number of Options that are or are deemed to be automatically exercised on such Exchange Date under the Base Call Option Transaction Confirmation letter agreement dated [_______], 2026 between Dealer and Counterparty (the “Base Call Option Confirmation”),]22 shall be deemed to be automatically exercised; provided that such Options shall be exercised or deemed exercised only if Counterparty has provided a Notice of Exercise to Dealer in accordance with “Notice of Exercise” below. | |
| Notwithstanding the foregoing, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options. | ||
| 21 | Include cross-reference to exchange in lieu provision. |
| 22 | Include for Additional Call Option Confirmation only. |
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| Automatic Exercise of Remaining |
||
| Repurchase Options After |
||
| Free Exchangeability Date: |
Notwithstanding anything herein or in Section 3.4 of the Equity Definitions to the contrary, unless Counterparty notifies Dealer in writing prior to 5:00 p.m. (New York City time) on the Expiration Date that it does not wish Automatic Exercise to occur, a number of Options equal to the lesser of (a) the Number of Options (after giving effect to the provisions opposite the caption “Automatic Exercise” above) as of 5:00 p.m. (New York City time) on the Expiration Date and (b) the Remaining Repurchase Options [minus the number of Remaining Options (as defined in the Base Call Option Transaction Confirmation)]23 (such lesser number, the “Remaining Options”) will be deemed to be automatically exercised as if (i) a number of Exchangeable Notes (in denominations of USD 1,000 principal amount) equal to such number of Remaining Options were exchanged with an “Exchange Date” (as defined in the Indenture) occurring on or after the Free Exchangeability Date and (ii) the Relevant Settlement Method applied to such Exchangeable Notes; provided that no such automatic exercise pursuant to this paragraph will occur if the Relevant Price for each Valid Day during the Settlement Averaging Period is less than or equal to the Strike Price. “Remaining Repurchase Options” shall mean the excess of (I) the aggregate number of Exchangeable Notes (in denominations of USD 1,000 principal amount) that were subject to Repayment Events described in clause (y) of Section 9(i)(iv) (“Repurchase Events”) during the term of the Transaction over (II) the aggregate number of Repayment Options (as defined below) that were terminated hereunder relating to Repurchase Events during the term of the Transaction [and the number of Repayment Options (as defined in the Base Call Option Transaction Confirmation) terminated under the Base Call Option Transaction Confirmation relating to Repurchase Events (as defined therein) during the term of the “Transaction” under the Base Call Option Transaction Confirmation]24. | |
| Notice of Exercise: |
Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise of Remaining Repurchase Options After Free Exchangeability Date” above, in order to exercise any Options relating to Exchangeable Notes with an Exchange Date occurring on or after the Free Exchangeability Date, Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (and the related exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation | |
| 23 | Insert for Additional Call Option Confirmation only. |
| 24 | Insert for Additional Call Option Confirmation only. |
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| hereunder and the Settlement Date in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (including, but not limited to, losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the unwinding of any hedge position), solely resulting from Dealer not having received such notice prior to such notice deadline (it being understood that the adjusted delivery obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty); provided, further that if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Exchangeable Notes before 5:00 p.m. (New York City time) on the Free Exchangeability Date specifying (1) the Relevant Settlement Method for such Options, and (2) if the settlement method for the related Exchangeable Notes is not Settlement in Cash (as defined below), the fixed amount of cash per Exchangeable Note that Counterparty has elected to deliver to “Holders” (as such term is defined in the Indenture) of the related Exchangeable Notes (the “Specified Cash Amount”). Notwithstanding anything to the contrary herein, if Counterparty does not timely deliver the Notice of Final Settlement Method, then the Notice of Final Settlement Method shall be deemed timely given and the Relevant Settlement Method specified therein shall be deemed to be Net Share Settlement and it shall be deemed that the settlement method for the related Exchangeable Notes is a combination of cash and shares with a Specified Cash Amount of USD 1,000. Each of Counterparty and Issuer acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Exchangeable Notes. | ||
| Valuation Time: |
At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its commercially reasonable discretion. | |
| Market Disruption Event: |
Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following: | |
| “‘Market Disruption Event’ means, with respect to any date (i) a failure by the Relevant Stock Exchange to open for trading during its regular trading session on such date; or (ii) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Valid Day for the Shares | ||
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| for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the Relevant Stock Exchange or otherwise) in the Shares or in any options contracts or futures contracts relating to the Shares.” | ||
| “Relevant Stock Exchange” means the Exchange or, if the Shares are not then listed on the Exchange, the principal other Designated Exchange on which the Shares are then listed. | ||
| “Designated Exchange” means the Exchange, the Nasdaq Global Select Market or the Nasdaq Global Market (or any of their respective successors). | ||
| Settlement Terms. |
||
| Settlement Method: For any Option, Net Share Settlement; provided that if the Relevant Settlement Method set forth below for such Option is not Net Share Settlement, then the Settlement Method for such Option shall be such Relevant Settlement Method, but only if Counterparty shall have notified Dealer of the Relevant Settlement Method in the Notice of Final Settlement Method for such Option. | ||
| Relevant Settlement Method: |
In respect of any Option: | |
| (i) if Counterparty has elected, or is deemed to have elected, to settle its exchange obligations in respect of the related Exchangeable Note in a combination of cash and Shares pursuant to Section [14.02(a)(iii)(B)]25 of the Indenture with a Specified Cash Amount equal to USD 1,000, then the Relevant Settlement Method for such Option shall be Net Share Settlement; | ||
| (ii) if Counterparty has elected to settle its exchange obligations in respect of the related Exchangeable Note in a combination of cash and Shares pursuant to Section [14.02(a)(iii)(B))] 26 of the Indenture with a Specified Cash Amount greater than USD 1,000, then the Relevant Settlement Method for such Option shall be Combination Settlement; and | ||
| (iii) if Counterparty has elected to settle its exchange obligations in respect of the related Exchangeable Note entirely in cash pursuant to Section [14.02(a)(iii)(A)] 27 of the Indenture (such settlement method, “Settlement in Cash”), then the Relevant Settlement Method for such Option shall be Cash Settlement. | ||
| 25 | Include cross-reference to section of the Indenture containing provisions for combination settlement. |
| 26 | Include cross-reference to section of the Indenture containing provisions for combination settlement. |
| 27 | Include cross-reference to section of the Indenture containing provisions for cash settlement. |
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| Net Share Settlement: |
If Net Share Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement Date for each such Option, a number of Shares (the “Net Share Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for each such Option, of (i) (a) the Daily Option Value for such Valid Day, divided by (b) the Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Net Share Settlement Amount for any Option exceed a number of Shares equal to the Applicable Limit for such Option divided by the Applicable Limit Price on the Settlement Date for such Option. | |
| Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Net Share Settlement Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period. | ||
| Combination Settlement: |
If Combination Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will pay or deliver, as the case may be, to Counterparty, on the relevant Settlement Date for each such Option: | |
| (i) cash (the “Combination Settlement Cash Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (A) an amount (the “Daily Combination Settlement Cash Amount”) equal to the lesser of (1) the product of (x) the Applicable Percentage and (y) the Specified Cash Amount minus USD 1,000 and (2) the Daily Option Value, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in clause (A) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Cash Amount for such Valid Day shall be deemed to be zero; and | ||
| (ii) Shares (the “Combination Settlement Share Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of a number of Shares for such Valid Day (the “Daily Combination Settlement Share Amount”) equal to (A) (1) the Daily Option Value on such Valid Day minus the Daily Combination Settlement Cash Amount for such Valid Day, divided by (2) the Relevant Price on such Valid Day, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in sub-clause (A)(1) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Share Amount for such Valid Day shall be deemed to be zero; | ||
8
| provided that in no event shall the sum of (x) the Combination Settlement Cash Amount for any Option and (y) the Combination Settlement Share Amount for such Option multiplied by the Applicable Limit Price on the Settlement Date for such Option, exceed the Applicable Limit for such Option. | ||
| Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Combination Settlement Share Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period. | ||
| Cash Settlement: |
If Cash Settlement is applicable to any Option exercised or deemed exercised hereunder, in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for each such Option, an amount of cash (the “Cash Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Cash Settlement Amount for any Option exceed the Applicable Limit for such Option. | |
| Daily Option Value: |
For any Valid Day, an amount equal to (i) the Option Entitlement on such Valid Day, multiplied by (ii) (A) the lesser of the Relevant Price on such Valid Day and the Cap Price, less (B) the Strike Price on such Valid Day; provided that if the calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Valid Day shall be deemed to be zero. In no event will the Daily Option Value be less than zero. | |
| Applicable Limit: |
For any Option, an amount of cash equal to the Applicable Percentage multiplied by the excess of (i) the aggregate of (A) the amount of cash paid to the “Holder” (as such term is defined in the Indenture) of the related Exchangeable Note upon exchange of such Exchangeable Note and (B) the number of Shares, if any, delivered to the “Holder” (as such term is defined in the Indenture) of the related Exchangeable Note upon exchange of such Exchangeable Note multiplied by the Applicable Limit Price on the Settlement Date for such Option, over (ii) USD 1,000. | |
| Applicable Limit Price: |
On any day, the opening price as displayed under the heading “Op” on Bloomberg page PBF <equity> (or any successor thereto). | |
| Valid Day: |
A day on which (i) there is no Market Disruption Event and (ii) trading in the Shares generally occurs on the Relevant Stock Exchange. If the Shares are not so listed or admitted for trading on any Relevant Stock Exchange, “Valid Day” means a Business Day. | |
| Scheduled Valid Day: |
A day that is scheduled to be a Valid Day on the Relevant Stock Exchange. If the Shares are not so listed or admitted for trading on a Relevant Stock Exchange, “Scheduled Valid Day” means a Business Day. | |
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| Business Day: |
Any day other than a Saturday or Sunday, that is not a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed. | |
| Relevant Price: |
On any Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “PBF <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading at the primary trading session on such Valid Day (or if such volume-weighted average price is unavailable at such time, the market value of one Share on such Valid Day, as determined by the Calculation Agent in a commercially reasonable manner using, if practicable, a volume-weighted average method). The Relevant Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours. | |
| Settlement Averaging Period: |
For any Option and regardless of the Settlement Method applicable to such Option, the 30 consecutive Valid Days commencing on, and including, the 31st Scheduled Valid Day immediately prior to the Expiration Date. | |
| Settlement Date: |
For any Option, the second Business Day immediately following the final Valid Day of the Settlement Averaging Period for such Option. | |
| Settlement Currency: |
USD | |
| Other Applicable Provisions: |
The provisions of Sections 9.1(c), 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Settled”. “Share Settled” in relation to any Option means that Net Share Settlement or Combination Settlement is applicable to that Option. | |
| Representation and Agreement: |
Notwithstanding anything to the contrary in the Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge that (i) any Shares delivered to Counterparty shall be, upon delivery, subject to restrictions and limitations arising from Counterparty’s status as an affiliate of the Issuer under applicable securities laws, (ii) Dealer may deliver any Shares required to be delivered hereunder in certificated form in lieu of delivery through the Clearance System and (iii) any Shares delivered to Counterparty may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”)). | |
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| 3. Additional Terms applicable to the Transaction. | ||
| Adjustments applicable to the Transaction: |
||
| Potential Adjustment Events: |
Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that would result in an adjustment under the Indenture to the “Exchange Rate” or the composition of a “Unit of Reference Property” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Exchange Value,” “Daily Measurement Value” or “Daily Settlement Amount”(each as defined in the Indenture). For the avoidance of doubt, Dealer shall not have any delivery or payment obligation hereunder, and no adjustment shall be made to the terms of the Transaction, on account of (x) any distribution of cash, property or securities by Counterparty and/or Issuer to holders of the Exchangeable Notes (upon exchange or otherwise) or (y) any other transaction in which holders of the Exchangeable Notes are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to the third paragraph of Section 14.04(c)]28 of the Indenture or the third paragraph of Section 14.04(d)]29 of the Indenture). | |
| Method of Adjustment: |
Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent shall make a corresponding adjustment to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner. | |
| Notwithstanding the foregoing and “Consequences of Merger Events / Tender Offers” below: | ||
| (i) if the Calculation Agent in good faith disagrees with any adjustment to the Exchangeable Notes that involves an exercise of discretion by Counterparty, Parent or either of their respective boards of directors (including, without limitation, pursuant to Section [14.05]30 of the Indenture, Section [14.07]31 of the Indenture or any supplemental indenture entered into thereunder or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will, in good faith and in a commercially reasonable manner and, if applicable, consistent with the | ||
| 28 | Include cross reference to provision in the Indenture providing for pass-through of Distributed Property, at the same time as it is received by holders of the Shares, in lieu of an Exchange Rate adjustment. |
| 29 | Include cross reference to provision in the Indenture providing for pass-through of cash, at the same time as it is received by holders of the Shares, in lieu of an Exchange Rate adjustment. |
| 30 | Include cross-reference to specific paragraph of the section of the Indenture providing for adjustments where a Exchange Rate adjustment occurs during a period over which VWAP, conversion value, settlement amount or closing price is calculated. |
| 31 | Include cross-reference to Indenture section relating to Specified Corporate Events. |
11
| methodology set forth in the Indenture, determine the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction; provided that, notwithstanding the foregoing, if any Potential Adjustment Event occurs during the Settlement Averaging Period but no adjustment was made to any Exchangeable Note under the Indenture because the relevant “Holder” (as such term is defined in the Indenture) was deemed to be a record owner of the underlying Shares on the related Exchange Date, then the Calculation Agent shall make a commercially reasonable adjustment, as determined by it, to the terms hereof in order to account for such Potential Adjustment Event; | ||
| (ii) in connection with any Potential Adjustment Event as a result of an event or condition set forth in Section [14.04(b)]32 of the Indenture or Section [14.04(c)]33 of the Indenture where, in either case, the period for determining “Y” (as such term is used in Section [14.04(b)]34 of the Indenture) or “SP0” (as such term is used in Section [14.04(c)]35 of the Indenture), as the case may be, begins before Parent has publicly announced the event or condition giving rise to such Potential Adjustment Event, then the Calculation Agent shall, in good faith and in a commercially reasonable manner, have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable out-of-pocket expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions, as a result of such event or condition not having been publicly announced prior to the beginning of such period; and | ||
| 32 | Include cross-reference to section of the Indenture providing for an adjustment to the Exchange Rate in connection with a below-market rights, options or warrants offering. |
| 33 | Include cross-reference to section of the Indenture providing for an adjustment to the Exchange Rate in connection with distributions of Distributed Property. |
| 34 | Include cross-reference to section of the Indenture providing for an adjustment to the Exchange Rate in connection with a below-market rights, options or warrants offering. |
| 35 | Include cross-reference to section of the Indenture providing for an adjustment to the Exchange Rate in connection with distributions of Distributed Property. |
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| (iii) if any Potential Adjustment Event is declared and (a) the event or condition giving rise to such Potential Adjustment Event is subsequently amended, modified, cancelled or abandoned, (b) the “Exchange Rate” (as defined in the Indenture) is otherwise not adjusted at the time or in the manner contemplated by the relevant Dilution Adjustment Provision based on such declaration or (c) the “Exchange Rate” (as defined in the Indenture) is adjusted as a result of such Potential Adjustment Event and subsequently re-adjusted (each of clauses (a), (b) and (c), a “Potential Adjustment Event Change”) then, in each case, the Calculation Agent shall, in good faith and in a commercially reasonable manner, have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable out-of-pocket expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions, as a result of such Potential Adjustment Event Change. | ||
| Dilution Adjustment Provisions: |
Sections [14.04(a), (b), (c), (d) and (e)]36 and Section [14.05]37 of the Indenture. | |
| Extraordinary Events applicable to the Transaction: | ||
| Merger Events: |
Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Specified Corporate Event” in Section [14.07(a)]38 of the Indenture. | |
| Tender Offers: |
Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in Section [14.04(e)]39 of the Indenture. | |
| Consequences of Merger Events/ |
||
| Tender Offers: |
Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for | |
| 36 | Include cross-reference to specific paragraphs of the section of the Indenture containing anti-dilution adjustments to the Exchange Rate. |
| 37 | Include cross-reference to specific paragraph of the section of the Indenture providing for adjustments where a Exchange Rate adjustment occurs during a period over which VWAP, conversion value, settlement amount or closing price is calculated. |
| 38 | Include cross-reference to Indenture section relating to Specified Corporate Events. |
| 39 | Include cross-reference to the section of the Indenture describing consequences of tender offers. |
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| the Transaction, to the extent an analogous adjustment is required under Section [14.07]40 of the Indenture in respect of such Merger Event or Section [14.04(e)] of the Indenture in respect of such Tender Offer, as the case may be, as determined in good faith and in a commercially reasonable manner by the Calculation Agent by reference to such Section, subject to the second paragraph under “Method of Adjustment”; provided, however, that such adjustment shall be made without regard to any adjustment to the “Exchange Rate” (as defined in the Indenture) pursuant to any Excluded Provision; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporation organized under the laws of the United States, any State thereof or the District of Columbia, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s reasonable election; provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Exchange. | ||
| Consequences of Announcement Events: |
Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (w) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (x) the phrase “exercise, settlement, payment or any other terms of the Transaction (including, without limitation, the spread)” shall be replaced with the phrase “Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)”, (y) the phrases “whether within a commercially reasonable (as determined by the Calculation Agent) period of time prior to or after the Announcement Event,” shall be inserted prior to the word “which” in the seventh line, and (z) for the avoidance of doubt, the Calculation Agent shall, in good faith and in a commercially reasonable manner, determine whether the relevant Announcement Event has had an economic effect on the Transaction (including, among other terms, the Strike Price and Cap Price) and, if so, shall adjust the Cap Price accordingly on one or more occasions on or after the date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that (i) any adjustment in respect of an Announcement Event shall take into account any earlier | |
| 40 | Include cross-reference to Indenture section relating to Specified Corporate Events. |
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| adjustment relating to the same Announcement Event and (ii) in making any adjustment (which shall not be duplicative with any other adjustments hereunder) the Calculation Agent shall take into account volatility, liquidity or other commercially reasonable option pricing inputs before and after such Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable. | ||
| Announcement Event: |
(i) The public announcement by Issuer, any subsidiary, agent or representative of Issuer or any Valid Third-Party Entity or any subsidiary, agent or representative of any Valid Third-Party Entity (any such person or entity, a “Relevant Party”) of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (y) any potential acquisition or disposition by Issuer and/or its subsidiaries where the aggregate consideration exceeds 35% of the market capitalization of Issuer as of the date of such announcement (an “Acquisition Transaction”) or (z) the intention to enter into a Merger Event or Tender Offer or an Acquisition Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that is reasonably likely to include, a Merger Event or Tender Offer or an Acquisition Transaction (it being understood and agreed that in determining, in a commercially reasonable manner, whether such announcement is reasonably likely to include a Merger Event or Tender Offer or an Acquisition Transaction, the Calculation Agent shall take into consideration whether the relevant announcement has had a material economic effect on the Shares and/or Options on the Shares) or (iii) any subsequent public announcement by a Relevant Party (in the case of a transaction or intention pursuant to clause (i)) or Issuer (in the case of a transaction or intention pursuant to clause (ii)) of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” (A) “Merger Event” shall mean such term as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded) and (B) “Tender | |
15
| Offer” shall mean such term as defined under Section 12.1(d) of the Equity Definitions; provided that (1) Section 12.1(d) of the Equity Definitions is hereby amended by (x) replacing “10%” with “25%” in the third line thereof and (y) replacing the words “voting shares of the Issuer” in the fourth line thereof with the word “Shares” and (2) Section 12.1(e) of the Equity Definitions is hereby amended by replacing the words “voting shares” in the first line thereof with the word “Shares”. | ||
| Valid Third Party Entity: |
In respect of any transaction or event, any third party that has a bona fide intent to enter into or consummate such transaction (it being understood and agreed that in determining, in a commercially reasonable manner, whether such third party has such a bona fide intent, the Calculation Agent shall take into consideration whether the relevant announcement by such party has had a material economic effect on the Shares and/or Options on the Shares). | |
| Nationalization, Insolvency or Delisting: |
Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. | |
| Additional Disruption Events: |
||
| Change in Law: |
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position” and (iii) replacing the parenthetical beginning after the word “regulation” in the second line thereof with the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption, effectiveness or promulgation of new regulations authorized or mandated by existing statute)”. Notwithstanding anything to the contrary in the Equity Definitions, a Change in Law described in clause (Y) of Section 12.9(a)(ii) of the Equity Definitions shall not constitute a Change in Law and instead shall constitute an Increased Cost of Hedging as described in Section 12.9(a)(vi) of the Equity Definitions, and any such determination of a Change in Law shall be consistently applied by the Determining Party across transactions similar to the Transaction and for counterparties similar to Counterparty. | |
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| Failure to Deliver: |
Applicable | |
| Hedging Disruption: |
Applicable; provided that: | |
| (i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by inserting the following two phrases at the end of such Section: | ||
| “For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; | ||
| (ii) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”; and | ||
| (iii) it shall not be a Hedging Disruption if such inability occurs solely due to the deterioration of the creditworthiness of the Hedging Party. | ||
| Increased Cost of Hedging: |
Applicable solely with respect to a “Change in Law” described in clause (Y) of Section 12.9(a)(ii) of the Equity Definitions as set forth in the last sentence opposite the caption “Change in Law” above. | |
| Hedging Party: |
For all applicable Additional Disruption Events, Dealer. Following any adjustment or calculation by the Hedging Party hereunder, the Hedging Party agrees that it will promptly (but in any event within five (5) Exchange Business Days), upon written notice from Counterparty, provide a statement displaying in reasonable detail the basis for such adjustment or calculation, as the case may be (including any quotations, market data or information from internal or external sources used in making such adjustment or calculation, it being understood that the Hedging Party shall not be required to disclose any confidential information or proprietary models used by it in connection with such adjustment or calculation, as the case may be). | |
| Determining Party: |
For all applicable Extraordinary Events, Dealer. All calculations and determinations by the Determining Party shall be made in good faith and in a commercially reasonable manner. The Determining Party will promptly (but in any event within five (5) Exchange Business Days), upon written notice from Counterparty, provide a statement (which may be by email) displaying in reasonable detail the | |
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| basis for such determination or calculation, as the case may be (including any quotations, market data or information from internal or external sources used in making such determination or calculation, it being understood that the Determining Party shall not be required to disclose any confidential information or proprietary models used by it in connection with such determination or calculation, as the case may be). | ||
| Non-Reliance: |
Applicable | |
| Agreements and Acknowledgments |
||
| Regarding Hedging Activities: |
Applicable | |
| Additional Acknowledgments: |
Applicable | |
| Hedging Adjustment: |
For the avoidance of doubt, whenever Hedging Party, Determining Party or the Calculation Agent makes an adjustment, calculation or determination permitted or required to be made pursuant to the terms of this Confirmation or the Equity Definitions to take into account the effect of any event (other than an adjustment, calculation or determination made by reference to the Indenture), the Calculation Agent, Determining Party or Hedging Party, as the case may be, shall make such adjustment, calculation or determination in a commercially reasonable manner and by reference to the effect of such event on Dealer assuming that Dealer maintains a commercially reasonable hedge position. | |
| 4. | Calculation Agent. Dealer; provided that all calculations and determinations by the Calculation Agent (other than calculations or determinations made by reference to the Indenture, without discretion on the part of the Calculation Agent) shall be made in good faith and in a commercially reasonable manner and assuming for such purposes that Dealer is maintaining, establishing and/or unwinding, as applicable, a commercially reasonable hedge position; provided further that if an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party occurs, Counterparty shall have the right to appoint a successor calculation agent which shall be a nationally recognized third-party dealer in over-the-counter corporate equity derivatives. The Calculation Agent agrees that it will promptly (but in any event within five (5) Exchange Business Days), upon written notice from Counterparty, provide a statement (which may be by email) displaying in reasonable detail the basis for such determination, adjustment or calculation, as the case may be (including any quotations, market data or information from internal or external sources used in making such determination, adjustment or calculation, it being understood that the Calculation Agent shall not be required to disclose any confidential information or proprietary models used by it in connection with such determination, adjustment or calculation, as the case may be). | |
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| 5. | Account Details. |
| (a) | Account for payments to Counterparty: |
To be provided by Counterparty.
Account for delivery of Shares to Counterparty:
To be provided by Counterparty.
| (b) | Account for payments to Dealer: |
| [Bank:] | [_________]41 |
| [SWIFT:] | [_________] |
| [Bank Routing:] | [_________] |
| [Acct Name:] | [_________] |
| [Acct No.:] | [_________] |
Account for delivery of Shares from Dealer:
[__________]
| 6. | Offices. |
| (a) | The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party. |
| (b) | The Office of Dealer for the Transaction is: [____________][Inapplicable; Dealer is not a Multibranch Party.] |
| 7. | Notices. |
| (a) | Address for notices or communications to Counterparty: |
[__]
| (b) | Address for notices or communications to Dealer: |
[____________]42
| Attention: | [____________] |
| Telephone: | [____________] |
| Email: | [____________] |
[With a copy to:
[____________]
| Attention: | [____________] |
| Telephone: | [____________] |
| Email: | [____________]] |
| 41 | Insert Dealer’s account information. |
| 42 | Insert Dealer’s notice contact information. |
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| 8. | Representations and Warranties of Counterparty and Parent. |
In addition to the representations and warranties in the Agreement, each of Counterparty and Parent hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
| (a) | Each of Counterparty and Parent has all necessary corporate power and authority to execute, deliver and perform its respective obligations in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on each of Counterparty’s and Parent’s part; and this Confirmation has been duly and validly executed and delivered by each of Counterparty and Parent and constitutes its valid and binding obligation, enforceable against each of Counterparty and Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. |
| (b) | Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of each of Counterparty and Parent hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty or Parent, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Parent, Counterparty or any of their respective subsidiaries is a party or by which Parent, Counterparty or any of their respective subsidiaries is bound or to which Parent, Counterparty or any of their respective subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument. |
| (c) | To its knowledge, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by it of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws. |
| (d) | Each of Counterparty and Parent is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. |
| (e) | Each of Counterparty and Parent is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act). |
| (f) | Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Issuer or the Shares. |
| (g) | No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliate being financial institutions or broker-dealers. |
| (h) | Each of Counterparty and Parent (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million. |
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| (i) | The assets of each of Counterparty and Parent do not constitute “plan assets” within the meaning of 29 C.F.R. § 2510.3-101 under the Employee Retirement Income Security Act of 1974, as amended. |
| (j) | In respect of each of Counterparty and Parent on and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of such entity is greater than the sum of such entity’s total liabilities (including contingent liabilities) and its capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware), (B) the capital of such entity is adequate to conduct the business of such entity, and such entity’s entry into the Transaction will not impair its capital, (C) such entity has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) such entity will be able to continue as a going concern; (E) such entity is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) such entity would be able to purchase the number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of such entity’s incorporation (including the adequate surplus and capital requirements of Sections 154 and 160 of the General Corporation Law of the State of Delaware). |
| (k) | [Reserved]. |
| (l) | [It has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.]43 |
| 9. | Other Provisions. |
| (a) | Opinions. Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Premium Payment Date, with respect to the matters set forth in Sections 8(a) through (d) with respect to Counterparty and Parent of this Confirmation (it being understood that such opinions of counsel shall be limited to the federal laws of the United States, the laws of the State of New York and the General Corporate Law of the State of Delaware, and may contain customary assumptions, limitations, exceptions and qualifications). Delivery of such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement. |
| (b) | Repurchase Notices. Counterparty shall, no later than one Exchange Business Day following the day on which Counterparty and/or Parent effects any repurchase of Shares, give Dealer a written notice (which, for the avoidance of doubt may be by email) of such repurchase (a “Repurchase Notice”) if following such repurchase, the number of outstanding Shares as determined on such day is (i) less than [__]44 million (in the case of the first such notice) or (ii) thereafter more than [__]45 million less than the number of Shares included in the immediately preceding Repurchase Notice; provided that, with respect to any repurchase of Shares pursuant to a plan under Rule 10b5-1 under the Exchange Act (as defined below), Counterparty may elect to satisfy such requirement by |
| 43 | Include for applicable Dealers. |
| 44 | Insert the number of Shares outstanding that would cause Dealer’s current position in the Shares underlying the Transaction (including the number of Shares underlying any additional transaction if the greenshoe is exercised in full, and any Shares under pre-existing call option transactions with Counterparty) to increase by 0.5%. To be based on Dealer with highest Applicable Percentage. |
| 45 | Insert the number of Shares that, if repurchased, would cause Dealer’s current position in the Shares underlying the Transaction (including the number of Shares underlying any additional transaction if the greenshoe is exercised in full, and any Shares under pre-existing call option transactions with Counterparty) to increase by a further 0.5% from the threshold for the first Repurchase Notice. To be based on Dealer with highest Applicable Percentage. |
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| promptly giving Dealer written notice of entry into such plan, the maximum number of Shares that may be purchased thereunder and the approximate dates or periods during which such repurchases may occur (with such maximum number of Shares deemed repurchased on the date of such notice for purposes of this Section 9(b)). Counterparty and Parent agree, on a joint and several basis, to indemnify and hold harmless Dealer and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and all commercially reasonable losses (including losses relating to Dealer’s commercially reasonable hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable and documented out-of-pocket expenses (including reasonable external attorney’s fees), joint or several, which an Indemnified Person may become subject to, as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or other out-of-pocket expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Counterparty may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding. Counterparty and Parent shall be relieved from liability to the extent that any Indemnified Person fails to promptly notify Counterparty and Parent of any action commenced against it in respect of which indemnity may be sought hereunder to the extent Counterparty and/or Parent are materially prejudiced as a result thereof; provided that any such notice given within 5 days of such Indemnified Person becoming aware of such action shall be deemed to constitute prompt notice for purposes of this sentence. Counterparty and Parent shall not be liable for any settlement of any proceeding contemplated by this paragraph that is effected without their written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty and Parent jointly and severally agree to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Counterparty and Parent shall not, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding contemplated by this paragraph that is in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any commercially reasonable losses, claims, damages or liabilities referred to therein, then Counterparty and Parent hereunder, in lieu of indemnifying such Indemnified Person thereunder, agree to jointly and severally contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities. The remedies provided for in this paragraph (b) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction. |
| (c) | Regulation M. Neither Counterparty nor Parent is on the Trade Date engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities of Parent, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M. Neither Counterparty nor Parent shall, until the second Scheduled Trading Day immediately following the Trade Date, engage in any such distribution. |
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| (d) | No Manipulation. Neither Counterparty nor Parent is entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Exchange Act. |
| (e) | Transfer or Assignment. |
| (i) | Counterparty shall have the right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited to the following conditions: |
| (A) | With respect to any Transfer Options, Counterparty and Parent shall not be released from their respective notice and indemnification obligations pursuant to Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation; |
| (B) | Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”)); |
| (C) | Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer; |
| (D) | Dealer will not, as a result of such transfer and assignment, be required to pay the transferee or assignee on any payment date or delivery date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Dealer would have been required to pay or deliver to Counterparty in the absence of such transfer and assignment; |
| (E) | Dealer will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction of Tax from the payment) an amount less than it would have been entitled to receive from Counterparty in the absence of such transfer or assignment; |
| (F) | An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment; |
| (G) | Without limiting the generality of clause (B), the transferee or assignee shall make such Payee Tax Representations and provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and |
| (H) | Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment. |
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| (ii) | Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s or Parent’s consent (but with prompt subsequent (but in no event more than two Exchange Business Days) written notice to Counterparty) to any affiliate or branch of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer or Dealer’s ultimate parent generally for similar transactions, by Dealer or Dealer’s ultimate parent, as applicable (provided that in connection with any assignment or transfer pursuant to clause (A)(2) hereof, the guarantee of any guarantor of the relevant transferee’s obligations under the Transaction shall constitute a Credit Support Document under the Agreement), or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives and that has a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer or assignment and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by Moody’s Investor Service, Inc. or its successor (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in the case of any transfer or assignment described in clause (A) or (B) above, (I) such a transfer or assignment shall not occur unless an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment; and (II) at the time of such transfer or assignment the transfer or assignment does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code. In addition, (A) the transferee or assignee shall agree that following such transfer or assignment, Counterparty will not (x) receive from the transferee or assignee on any payment date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction of Tax from the payment or delivery) an amount or a number of Shares, as applicable, lower than the amount or the number of Shares, as applicable, that Counterparty would have been entitled to receive from Dealer in the absence of such transfer or assignment or (y) be required to pay such assignee or transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Counterparty would have been required to pay to Dealer in the absence of such transfer or assignment and (B) the transferee or assignee shall make such Payee Tax Representations and shall provide such tax documentation as may be reasonably requested by Counterparty including in order to permit Counterparty to make any necessary determinations pursuant to clause (A) of this sentence and to determine that the statement in clause (II) of the proviso that precedes (A) is correct. If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions), then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions). In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant |
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| to this sentence as if Counterparty was not the Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty or Parent that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding. |
| (iii) | Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities, or make or receive any payment in cash, to or from Counterparty, Dealer may designate any of its affiliates (each, a “Dealer Designated Affiliate”) to purchase, sell, receive or deliver such Shares or other securities, or to make or receive such payment in cash, and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations; provided, that such Dealer Designated Affiliate shall comply with the provisions of the Transaction in the same manner as Dealer would have been required to comply. For the avoidance of doubt, the representations and covenants with respect to Section 9(aa)(i) and 9(aa)(ii) shall remain unaffected by such designation. Dealer shall be discharged of its obligations to Counterparty solely to the extent of any such performance. |
| (f) | Staggered Settlement. If upon advice of counsel with respect to applicable legal and regulatory requirements, including any requirements relating to Dealer’s commercially reasonable hedging activities hereunder, Dealer reasonably determines, based on the advice of counsel, that it would not be practicable or advisable to deliver, or to acquire Shares to deliver, any or all of the Shares to be delivered by Dealer on any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares on two or more dates (each, a “Staggered Settlement Date”) as follows: |
| (i) | in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (the first of which will be such Nominal Settlement Date and the last of which will be no later than the twentieth (20th) Exchange Business Day following such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date; |
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| (ii) | the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date; and |
| (iii) | if the Net Share Settlement terms or the Combination Settlement terms set forth above were to apply on the Nominal Settlement Date, then the Net Share Settlement terms or the Combination Settlement terms, as the case may be, will apply on each Staggered Settlement Date, except that the Shares otherwise deliverable on such Nominal Settlement Date will be allocated among such Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above. |
| (g) | [Insert any relevant agency provisions][Reserved]. |
| (h) | [Conduct Rules. Each party acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry Regulatory Authority applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.][Reserved.]46 |
| (i) | Additional Termination Events. |
| (i) | Notwithstanding anything to the contrary in this Confirmation, upon any Early Exchange in respect of which a “Notice of Exchange” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant exchanging “Holder” (as such term is defined in the Indenture): |
| (A) | Counterparty shall, within ten Scheduled Trading Days of the Exchange Date for such Early Exchange, provide written notice (an “Early Exchange Notice”) to Dealer specifying the number of Exchangeable Notes surrendered for exchange on such Exchange Date (such Exchangeable Notes, the “Affected Exchangeable Notes”), and the giving of such Early Exchange Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that each of Counterparty and Parent acknowledges its responsibilities under applicable federal securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of any Early Exchange Notice; |
| (B) | upon receipt of any such Early Exchange Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Valid Day following the Exchange Date for such Early Exchange) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Exchangeable Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Exchangeable Notes]47 and (y) the Number of Options as of the Exchange Date for such Early Exchange; |
| (C) | any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage, multiplied by |
| 46 | Include for applicable Dealers. |
| 47 | Include in Additional Call Option Confirmation only. |
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| (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid to the “Holder” (as such term is defined in the Indenture) of an Affected Exchangeable Note upon exchange of such Affected Exchangeable Note and (ii) the number of Shares delivered (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Exchangeable Note upon exchange of such Affected Exchangeable Note, multiplied by the Applicable Limit Price on the settlement date for the exchange of such Affected Exchangeable Note, minus (y) the Synthetic Instrument Adjusted Issue Price determined by the Calculation Agent in a commercially reasonable manner based on the date of settlement of the exchange of such Affected Exchangeable Notes (the “Exchange Settlement Date”). “Synthetic Instrument Adjusted Issue Price” shall mean the amount determined by the Calculation Agent by reference to the table set forth below (the “Synthetic Instrument AIP Table”).48 If the relevant Exchange Settlement Date is not listed in the Synthetic Instrument AIP Table, the amount in the preceding sentence shall be determined by the Calculation Agent by reference to the Synthetic Instrument AIP Table, using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the Exchange Settlement Dates immediately preceding and immediately following the relevant Exchange Settlement Date; |
| Exchange Settlement Date |
Synthetic Instrument Adjusted Issue Price per Exchangeable Note | |
| [__] | USD [_______] | |
| [__] | USD [_______] | |
| [__] | USD [_______] | |
| [__] | USD [_______] | |
| [__] | USD [_______] | |
| [__] | USD [_______] | |
| [__] | USD [_______] | |
| [__] | USD [_______] | |
| [__] | USD [_______] | |
| [__] | USD [_______] | |
| [__] | USD 1,000.00 |
| (D) | for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Exchange and any exchanges, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Exchange Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Exchangeable Notes remain outstanding as if the circumstances related to such Early Exchange had not occurred; and |
| (E) | the Transaction shall remain in full force and effect, except that, as of the Exchange Date for such Early Exchange, the Number of Options shall be reduced by the Affected Number of Options. |
| 48 | Table to be filled out by calculating the synthetic adjusted issue price of an Exchangeable Note after giving effect to the integration pursuant to Section 1.1275-6 of the United States Treasury Regulations of the Transaction (and other call option transactions with respect to such Exchangeable Note entered into by the Counterparty) and the Exchangeable Note. |
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| (ii) | Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Exchangeable Notes as set forth in Section [6.01]49 of the Indenture, which event of default has resulted in the Exchangeable Notes becoming due and payable under the terms thereof, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. |
| (iii) | [Reserved]. |
| (iv) | Within ten Scheduled Trading Days following any Repayment Event (as defined below), Counterparty (x) in the case of a Repayment Event resulting from the redemption of any Exchangeable Notes by Counterparty or from the repurchase of any Exchangeable Notes by Counterparty upon the occurrence of a “Fundamental Change” (as defined in the Indenture), shall notify Dealer in writing of such Repayment Event and (y) in the case of a Repayment Event not described in clause (x) above, may notify Dealer of such Repayment Event, in each case, including the number of Exchangeable Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that no such Repayment Notice described in clause (y) above shall be effective unless it contains the representation by Counterparty and Parent set forth in Section 8(f) hereunder as of the date of such Repayment Notice. Counterparty and Parent each acknowledge their responsibilities under applicable federal securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of any such Repayment Notice [; provided further that any “Repayment Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation]50. Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this Section 9(i)(iv). Upon receipt of any such Repayment Notice, Dealer shall promptly designate an Exchange Business Day following receipt of such Repayment Notice (which in no event shall be earlier than the related settlement date for the relevant Repayment Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) the number of such Exchangeable Notes specified in such Repayment Notice [minus the number of Repayment Options (as defined in the Base Call Option Confirmation), if any, that relate to such Exchangeable Notes (and for purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Exchangeable Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]51 and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) the terminated portion of the Transaction were the sole Affected Transaction, (4) the relevant Repayment Event and any exchanges, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (5) no adjustments to the Exchange Rate |
| 49 | Include cross-reference to the Indenture section containing events of default. |
| 50 | Include for additional capped call. |
| 51 | Include for additional capped call |
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| have occurred pursuant to any Excluded Provision and (6) the corresponding Exchangeable Notes remain outstanding as if the circumstances related to such Repayment Event had not occurred; provided that, in the event of a Repayment Event pursuant to [Article 15] 52 of the Indenture or [Article 16]53 of the Indenture, the Repayment Unwind Payment shall not be greater than (x) the number of Repayment Options multiplied by (y) the product of (A) the Applicable Percentage and (B) the excess of (I) the amount paid by the Counterparty per Exchangeable Note pursuant to the relevant sections of the Indenture over (II) the Synthetic Instrument Adjusted Issue Price determined by the Calculation Agent in a commercially reasonable manner based on the date of payment of the amount due by Counterparty to “Holders” (as defined in the Indenture) of the relevant Exchangeable Notes pursuant to the relevant section of the Indenture (the “Repayment Date”). If the relevant Repayment Date is not listed in the Synthetic Instrument AIP Table, the amount in the preceding sentence shall be determined by the Calculation Agent by reference to the Synthetic Instrument AIP Table, using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the Repayment Dates immediately preceding and immediately following the relevant Repayment Date. “Repayment Event” means that (i) any Exchangeable Notes are repurchased (whether pursuant to [Article 15] 54 of the Indenture or [Article 16] 55 of the Indenture or otherwise) by Counterparty or any of its subsidiaries (including in connection with, or as a result of, a “Fundamental Change” (as defined in the Indenture), a redemption, a tender offer, exchange offer or similar transaction or for any other reason), (ii) any Exchangeable Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Exchangeable Notes is repaid in full prior to the final maturity date of the Exchangeable Notes (other than upon acceleration of the Exchangeable Notes pursuant to Section [6.02] of the Indenture), or (iv) any Exchangeable Notes are exchanged by or for the benefit of the “Holders” (as such term is defined in the Indenture) thereof for any other securities of Counterparty or any of its affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction. For the avoidance of doubt, any exchange of Exchangeable Notes (whether into cash, Shares, a combination of cash and Shares or any “Reference Property” (as defined in the Indenture)) pursuant to the terms of the Indenture shall not constitute a Repayment Event. Counterparty acknowledges and agrees that if an Additional Termination Event has occurred under this Section 9(i)(iv), then any related Exchangeable Notes subject to a Repayment Event will be deemed to be cancelled and disregarded and no longer outstanding for all purposes hereunder. |
| (j) | Amendments to Equity Definitions; Agreement. |
| (i) | Section 11.2(e)(vii) of the Equity Definitions is hereby replaced in its entirety with the words “any other corporate event involving the Issuer that has a material effect on the theoretical value of the Shares or the Options; provided that such event is not based on (a) an observable market, other than the market for the Issuer’s own stock or (b) an observable index, other than an index calculated and measured solely by reference to Issuer’s own operations.” |
| (ii) | Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) inserting “(1)” immediately following the word “means” in the first line thereof and (2) inserting immediately prior to the semi-colon at the end of subsection (B) thereof the following words: “or (2) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the ISDA Master Agreement with respect to that Issuer”. |
| 52 | Include cross-reference to the Indenture Article governing fundamental change repurchase. |
| 53 | Include cross-reference to the Indenture Article governing redemptions. |
| 54 | Include cross-reference to the Indenture Article governing fundamental change repurchase. |
| 55 | Include cross-reference to the Indenture Article governing redemptions. |
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| (iii) | Section 12.9(b)(i) of the Equity Definitions is hereby amended by replacing “either party may elect” with “Dealer may elect” or, if Counterparty represents to Dealer in writing at the time of such election that (i) it is not aware of any material nonpublic information with respect to Counterparty or the Shares and (ii) it is not making such election as part of a plan or scheme to evade compliance with the U.S. federal securities laws, Counterparty may elect”. |
| (iv) | Section 12.9(b)(vi) of the Equity Definitions is hereby amended by replacing subsection (C) with: “if each of Counterparty and Issuer represents to Dealer in writing at the time of such election that (i) it is not aware of any material nonpublic information with respect to Issuer or the Shares and (ii) it is not making such election as part of a plan or scheme to evade compliance with the U.S. federal securities laws, elect to terminate the Transaction as of that second Scheduled Trading Day”. |
| (v) | Section 12(a) of the Agreement is hereby amended by (1) deleting the phrase “or email” in the third line thereof and (2) deleting the phrase “or that communication is delivered (or attempted) or received, as applicable, after the close of business on a Local Business Day” in the final clause thereof. |
| (k) | No Setoff. Each party waives any and all rights it may have to set off obligations arising under the Agreement and the Transaction against other obligations between the parties, whether arising under any other agreement, applicable law or otherwise. |
| (l) | Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If (a) an Early Termination Date (whether as a result of an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result of (i) a Nationalization, Insolvency or Merger Event in which the consideration to be paid to holders of Shares consists solely of cash, (ii) an Announcement Event, Merger Event or Tender Offer that is within Counterparty’s control, or (iii) an Event of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the Affected Party other than an Event of Default of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type described in Section 5(b) of the Agreement, in each case that resulted from an event or events outside Counterparty’s control), and if Dealer would owe any amount to Counterparty pursuant to Section 6(d)(ii) of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “Payment Obligation”), then Dealer shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below), unless (a) Counterparty gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the date of the Announcement Event, Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) Counterparty and Parent each remakes the representation set forth in Section 8(f) as of the date of such election and (c) Dealer agrees, in its commercially reasonable discretion, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of Section 6(d)(ii) of the Agreement, as the case may be, shall apply. |
| Share Termination Alternative: | If applicable, Dealer shall deliver to Counterparty the Share Termination Delivery Property on, or within a commercially reasonable period of time after, the date when the relevant Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable, in satisfaction of such Payment Obligation in the manner reasonably requested by Counterparty free of payment. |
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| Share Termination Delivery Property: | A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price. | |
| Share Termination Unit Price: | The value of property contained in one Share Termination Delivery Unit, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation. For the avoidance of doubt, the parties agree that in determining the Share Termination Delivery Unit Price the Calculation Agent may consider the purchase price paid in connection with the purchase of Share Termination Delivery Property. | |
| Share Termination Delivery Unit: | One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “Exchange Property”), a unit consisting of the type and amount of such Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event, as determined by the Calculation Agent. | |
| Failure to Deliver: | Applicable | |
| Other applicable provisions: | If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9 and 9.11 (as modified above) of the Equity Definitions and the provisions set forth opposite the caption “Representation and Agreement” in Section 2 will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination Settled” in relation to the Transaction means that Share Termination Alternative is applicable to the Transaction. | |
| (m) | Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of either party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided herein. |
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| (n) | Registration. Counterparty and Parent hereby agrees that if, in the good faith reasonable judgment of Dealer, based on advice of counsel, the Shares (other than any such Shares that were, at the time of acquisition by Dealer, “restricted securities” (as defined in Rule 144 under the Securities Act)) (“Hedge Shares”) acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the public market by Dealer without registration under the Securities Act, Counterparty and Parent shall, at their election, either (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act and enter into an agreement, in form and substance reasonably satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered secondary offering by an issuer of comparable size in the same or in a similar industry; provided, however, that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this paragraph shall apply at the election of Counterparty and Parent, (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities by an issuer of comparable size in the same or in a similar industry, all consistent with such customary market practice and in form and substance reasonably acceptable to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its commercially reasonable judgment, to compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement), or (iii) purchase the Hedge Shares from Dealer at the then-current market price on such Exchange Business Days, and in the amounts and at such time(s), requested by Dealer. |
| (o) | Tax Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure. |
| (p) | Right to Extend. Dealer may postpone or add, in whole or in part, any Valid Day or Valid Days during the Settlement Averaging Period or any other date of valuation, payment or delivery by Dealer, with respect to some or all of the Options hereunder, if Dealer reasonably determines, in its commercially reasonable judgment (in the case of clause (i) below) or based on the advice of counsel (in the case of clause (ii) below), that such action is reasonably necessary or appropriate (i) to preserve Dealer’s commercially reasonable hedging or hedge unwind activity hereunder in light of existing liquidity conditions (but only if there is a material decrease in liquidity relative to Dealer’s expectations on the Trade Date) or (ii) to enable Dealer to effect transactions with respect to Shares in connection with its commercially reasonable hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Parent or an affiliated purchaser of Parent, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer; provided that such policies and procedures have been adopted by Dealer in good faith and are generally applicable in similar situations and applied in a non-discriminatory manner; provided, further that no such Valid Day or any other date of valuation, payment or delivery may be postponed or added more than 45Valid Days after the original Valid Day or any other date of valuation, payment or delivery, as the case may be. |
| (q) | Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Counterparty with respect to the Transaction that are senior to the claims of common stockholders of Counterparty in any United States bankruptcy proceedings of Counterparty or Parent; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Counterparty or Parent of their respective obligations and agreements with respect to the Transaction; provided, further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction. |
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| (r) | Securities Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code. |
| (s) | Notice of Certain Other Events. Counterparty covenants and agrees that: |
| (i) | Promptly as reasonably practicable following the public announcement of the results of any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, Counterparty shall give Dealer, or shall cause Parent to give Dealer, written notice of the weighted average of the types and amounts of consideration received by holders of Shares upon consummation of such Merger Event (the date of such notification, the “Consideration Notification Date”); provided that in no event shall the Consideration Notification Date be later than the date on which such Merger Event is consummated; and |
| (ii) | (A) Counterparty shall give Dealer commercially reasonable advance (but in no event less than one Exchange Business Day prior to the relevant Adjustment Notice Deadline) written notice of the section or sections of the Indenture and, if applicable, the formula therein, pursuant to which any adjustment will be made to the Exchangeable Notes in connection with any Potential Adjustment Event (other than a Potential Adjustment in respect of the Dilution Adjustment Provision set forth in Section [14.04(b)] or Section [14.04(d)] of the Indenture) or Merger Event and (B) promptly following any such adjustment (including any Potential Adjustment in respect of the Dilution Adjustment Provision set forth in Section [14.04(b)] or Section [14.04(d)] of the Indenture), Counterparty shall give Dealer written notice of the details of such adjustment. The “Adjustment Notice Deadline” means (i) for any Potential Adjustment in respect of the Dilution Adjustment Provision set forth in Section [14.04(a)] of the Indenture, the relevant “Ex-Dividend Date” (as such term is defined in the Indenture) or “effective date” (as such term is used in such provision of the Indenture), as the case may be, (ii) for any Potential Adjustment in respect of the Dilution Adjustment Provision in the first formula set forth in Section [14.04(c)] of the Indenture, the first “Trading Day” (as such term is defined in the Indenture) of the period referred to in the definition of “SP” in such formula, (iii) for any Potential Adjustment in respect of the Dilution Adjustment Provision in the second formula set forth in Section [14.04(c)] of the Indenture, the first “Trading Day” (as such term is defined in the Indenture) of the “Valuation Period” (as such term is defined in the Indenture), (iv) for any Potential Adjustment in respect of the Dilution Adjustment Provision set forth in Section [14.04(e)] of the Indenture, the first “Trading Day” (as such term is defined in the Indenture) of the period referred to in the definition of “SP1’” in the formula in such Section, and (v) for any Merger Event, the effective date of such Merger Event (or, if earlier, the first day of any valuation or similar period in respect of such Merger Event). |
| (t) | Wall Street Transparency and Accountability Act. In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption, Increased Cost of Hedging, an Excess Ownership Position, or Illegality (as defined in the Agreement)). |
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| (u) | Agreements and Acknowledgments Regarding Hedging. Each of Counterparty and Parent understands, acknowledges and agrees that: (A) at any time on and prior to the Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the Transaction; (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Relevant Prices; and (D) any market activities of Dealer and its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Relevant Prices, each in a manner that may be adverse to Counterparty. |
| (v) | Early Unwind. In the event the sale of the [“Firm Securities”]56[“Option Securities”]57 (as defined in the Purchase Agreement (the “Purchase Agreement”) dated as of [__], 2026, between Counterparty, the guarantors party thereto and Wells Fargo Securities, LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”)) is not consummated with the Initial Purchasers for any reason, or Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer, Parent and Counterparty under the Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date. Each of Dealer, Parent and Counterparty represents and acknowledges to the other that upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged. |
| (w) | Payment by Counterparty. In the event that, following payment of the Premium, (i) an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Counterparty owes to Dealer an amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty owes to Dealer, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero. |
| (x) | Other Adjustments Pursuant to the Equity Definitions. Notwithstanding anything to the contrary in this Confirmation, solely for the purpose of adjusting the Cap Price, the terms “Potential Adjustment Event,” “Merger Event,” and “Tender Offer” shall each have the meanings assigned to such term in the Equity Definitions (as amended by Section 9(j)(i) or, if applicable, by the definition of “Announcement Event”, and provided that for purposes of the foregoing (1) Section 12.1(d) of the Equity Definitions shall be amended by (x) replacing “10%” with “25%” in the third line thereof and (y) replacing the words “voting shares of the Issuer” in the fourth line thereof with the word “Shares” and (2) Section 12.1(e) of the Equity Definitions is hereby amended by replacing the words “voting shares” in the first line thereof with the word “Shares”), and upon the occurrence of a Merger Date, the occurrence of a Tender Offer Date, or declaration by Counterparty or Issuer of the terms of any Potential Adjustment Event, respectively, as such terms are defined in the Equity Definitions, |
| 56 | Insert for Base Call Option Confirmation. |
| 57 | Insert for Additional Call Option Confirmation. |
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| the Calculation Agent shall determine whether such occurrence or declaration, as applicable, has had a material economic effect on the Transaction (including, among other terms, the Strike Price and Cap Price) and, if so, shall adjust the Cap Price as the Calculation Agent determines appropriate to account for the economic effect on the Transaction of such occurrence or declaration, as applicable; provided that in no event shall the Cap Price be less than the Strike Price. Solely for purposes of a Potential Adjustment Event under this Section 9(x), (i) “Extraordinary Dividend” means any cash dividend on the Shares other than a regular, quarterly cash dividend in an amount equal to the Regular Dividend, (ii) the parties agree that (x) open market Share repurchases at prevailing market prices and (y) Share repurchases through a dealer pursuant to accelerated share repurchases, forward contracts or similar transactions that are entered into at prevailing market prices and in accordance with customary market terms for transactions of such type to repurchase the Shares shall not be considered Potential Adjustment Events, in each case, to the extent that, after giving effect to such transactions, the aggregate number of Shares repurchased during the term of the Transaction pursuant to all transactions described in this sub-clause would not exceed 20% of the greater of (a) the number of Shares outstanding as of the Trade Date and (b) the number of Shares outstanding as of the end of the Issuer’s most recently completed fiscal quarter, as determined by the Calculation Agent in a commercially reasonable manner and (iii) in the case of Sections 11.2(e)(i), (ii)(A) and (iv) of the Equity Definitions, no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares but, for the avoidance of doubt, solely in the case of Sections 11.2(e)(ii)(B) through (D), (iii), (v), (vi) and (vii) of the Equity Definitions, adjustments shall be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares. |
| (y) | Dividends. If at any time during the period from and including the Effective Date, to but excluding the Expiration Date, (i) an ex-dividend date for a regular quarterly cash dividend occurs with respect to the Shares (an “Ex-Dividend Date”), and that dividend is less than the Regular Dividend on a per Share basis, or (ii) no Ex-Dividend Date for a regular quarterly cash dividend occurs with respect to the Shares in any quarterly dividend period of Parent, then the Calculation Agent will adjust the Cap Price to account for the economic effect on the Transaction of such dividend or lack thereof. “Regular Dividend” shall mean USD 0.275 per Share per quarter. Upon any adjustment to the “Dividend Threshold” (as defined in the Indenture) for the Exchangeable Notes pursuant to the Indenture, the Calculation Agent will make a corresponding adjustment to the Regular Dividend for the Transaction. |
| (z) | [Insert preferred form of U.S. QFC Stay Rule language for each Dealer, if applicable.] |
| (aa) | Tax Matters. |
| (i) | Payee Tax Representations. For the purpose of Section 3(f) of the Agreement, the parties make the following representations, as applicable: |
| (A) | PBF Holding Company LLC is a disregarded entity for U.S. federal income tax purposes and its sole regarded owner is PBF Energy Company LLC, a United States person within the meaning of section 7701(a)(30) of the Code, taxable as a partnership for U.S. federal income tax purposes. |
| (B) | PBF Finance Corporation is a corporation for U.S. federal income tax purposes and is created or organized in the United States or under the laws of the United States. It is “exempt” within the meaning of Treasury Regulation section 1.6049-4(c) from information reporting on U.S. Internal Revenue Service Form 1099 and backup withholding. |
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| (C) | [__]58 |
| (ii) | Tax Forms. For the purpose of Section 4(a)(i) of the Agreement: |
| (A) | Each Counterparty shall provide Dealer with a valid and duly executed U.S. Internal Revenue Service Form W-9, or any successor thereto, (i) on or before the date of execution of this Confirmation, (ii) promptly upon reasonable demand by Dealer and (iii) promptly upon learning that any such tax form previously provided by Counterparty has become obsolete or incorrect. |
| (B) | [Dealer shall provide Counterparty with a valid and duly executed U.S. Internal Revenue Service Form [__], or any successor thereto, (i) on or before the date of execution of this Confirmation, (ii) promptly upon reasonable demand by Counterparty and (iii) promptly upon learning that any such tax form previously provided by Dealer has become obsolete or incorrect.]59 |
| (iii) | Foreign Account Tax Compliance Act. “Indemnifiable Tax”, as defined in Section 14 of the Agreement, shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement. |
| (iv) | Section 871(m) Protocol. Dealer and Counterparty hereby agree that this Agreement shall be treated as a Covered Master Agreement (as that term is defined in the 2015 Section 871(m) Protocol published by the International Swaps and Derivatives Association, Inc. on November 2, 2015, as may be amended or modified from time to time (the “2015 Section 871(m) Protocol”)) and this Agreement shall be deemed to have been amended in accordance with the modifications specified in the Attachment to the 2015 Section 871(m) Protocol. If there is any inconsistency between this provision and a provision in any other agreement executed between the parties, this provision shall prevail unless such other agreement expressly overrides the provisions of the 871(m) Protocol. |
| (bb) | Joint and Several Obligations. For the avoidance of doubt, each of PBF Holding Company LLC and PBF Finance Corporation acknowledges that each shall be jointly and severally liable for all agreements and obligations of Counterparty hereunder and in respect of the Transaction. Any references herein to “Counterparty” shall mean each of such individual entities, and the occurrence of any Early Termination Event, Event of Default, Potential Event of Default, Termination Event, or the failure of any obligation or agreement in relation to any of such individual entities shall mean the occurrence of such an event in relation to “Counterparty” for purposes of the Agreement. |
| (cc) | [Insert additional Dealer boilerplate, if applicable.] |
[Signature Pages Follow.]
| 58 | [NTD: Dealer to provide.] |
| 59 | [NTD: Dealer to provide.] |
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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to [Dealer].60
| Very truly yours, | ||||
| [Dealer] | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
| 60 | Include Dealer preferred signature page information, as applicable. |
[Signature Page to [Base][Additional] Capped Call Confirmation]
Accepted and confirmed
as of the Trade Date:
| PBF HOLDING COMPANY LLC | ||
| By: |
| |
| Name: | ||
| Title: | ||
| PBF FINANCE CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
For purposes of the representations made by Parent in Section 8 herein and the representations, covenants and other undertakings made by Parent in Sections 9(b), 9(c), 9(d), 9(n), 9(u) and 9(v) herein, confirmed and acknowledged as of the date first above written:
| PBF ENERGY INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to [Base][Additional] Capped Call Confirmation]