THIRD SUPPLEMENTAL INDENTURE

EXHIBIT 4.3.4

 

THIRD SUPPLEMENTAL INDENTURE

between

XTO ENERGY INC.

and

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee

 

August 7, 2008

5.00% Senior Notes due 2010

5.75% Senior Notes due 2013

6.50% Senior Notes due 2018

 

TABLE OF CONTENTS

 

 

 

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THIRD SUPPLEMENTAL INDENTURE

THIS THIRD SUPPLEMENTAL INDENTURE, dated as of August 7, 2008 (this “Third Supplemental Indenture”), between XTO Energy Inc., a Delaware corporation (the “Company”), and The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America (the “Trustee”),

WITNESSETH:

WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of July 19, 2007 (the “Original Indenture” and, as amended and supplemented by the First Supplemental Indenture dated as of July 19, 2007, the Second Supplemental Indenture dated as of April 18, 2008 and this Third Supplemental Indenture, the “Indenture”), providing for the issuance from time to time of one or more series of the Company’s Securities;

WHEREAS, Section 8.1(k) of the Indenture provides that the Company and the Trustee may from time to time enter into one or more indentures supplemental thereto to establish the form or terms of Securities of a new series;

WHEREAS, Section 8.1(h) of the Indenture permits the execution of supplemental indentures without the consent of any Holders to add to, change or eliminate any of the provisions of the Indenture with respect to all or any series of Securities, provided that, among other things, such addition, change or elimination does not apply to any outstanding Security of any series created prior to the execution of such supplemental indenture;

WHEREAS, Sections 2.1 and 2.2 of the Indenture provide that the Company may establish the form, terms and provisions of a series of Securities issued pursuant to the Indenture;

WHEREAS, the Company desires to issue $250,000,000 aggregate principal amount of 5.00% Senior Notes due 2010 (the “2010 Notes”), a new series of Securities, the issuance of which was authorized by or pursuant to a resolution of the Board of Directors of the Company;

WHEREAS, the Company desires to issue $500,000,000 aggregate principal amount of 5.75% Senior Notes due 2013 (the “2013 Notes”), a new series of Securities, the issuance of which was authorized by or pursuant to a resolution of the Board of Directors of the Company;

WHEREAS, the Company desires to issue $1,000,000,000 aggregate principal amount of 6.50% Senior Notes due 2018 (the “2018 Notes”), a new series of Securities, the issuance of which was authorized by or pursuant to a resolution of the Board of Directors of the Company;

WHEREAS, the Company, pursuant to the foregoing authority, proposes in and by this Third Supplemental Indenture to supplement and amend the Original Indenture insofar as it will apply only to the 2010 Notes, the 2013 Notes and the 2018 Notes in certain respects; and

WHEREAS, all things necessary have been done to make the 2010 Notes, the 2013 Notes and the 2018 Notes, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and to make this Third Supplemental Indenture a valid and legally binding agreement of the Company, in accordance with their and its terms;

 

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NOW, THEREFORE:

In consideration of the premises provided for herein, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of all Holders of the 2010 Notes, the 2013 Notes and the 2018 Notes as follows:

ARTICLE 1

THE NOTES

SECTION 1.1. Designation of Notes; Establishment of Form.

There shall be a series of Securities designated “5.00% Senior Notes due 2010” of the Company (the “2010 Notes”), and the form thereof shall be substantially as set forth in Exhibit A hereto, which is incorporated into and shall be deemed a part of this Third Supplemental Indenture, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently with the Indenture, be determined by the officers of the Company executing such 2010 Notes, as evidenced by their execution of the 2010 Notes.

There shall be a series of Securities designated “5.75% Senior Notes due 2013” of the Company (the “2013 Notes”), and the form thereof shall be substantially as set forth in Exhibit B hereto, which is incorporated into and shall be deemed a part of this Third Supplemental Indenture, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently with the Indenture, be determined by the officers of the Company executing such 2013 Notes, as evidenced by their execution of the 2013 Notes.

There shall be a series of Securities designated “6.50% Senior Notes due 2018” of the Company (the “2018 Notes”), and the form thereof shall be substantially as set forth in Exhibit C hereto, which is incorporated into and shall be deemed a part of this Third Supplemental Indenture, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently with the Indenture, be determined by the officers of the Company executing such 2018 Notes, as evidenced by their execution of the 2018 Notes.

The 2010 Notes, the 2013 Notes and the 2018 Notes are referred to collectively in this Third Supplemental Indenture as the “Notes”.

 

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The Notes will initially be issued in permanent global form, substantially in the form set forth in Exhibit A , Exhibit B or Exhibit C hereto, as applicable, as a Global Security.

The Company initially appoints The Bank of New York Mellon to act as Paying Agent and Security Registrar with respect to the Notes at its corporate trust office at 101 Barclay Street, New York, New York.

SECTION 1.2. Amount.

The Trustee shall authenticate and deliver Notes for original issue in an aggregate principal amount of up to $1,750,000,000, consisting of up to $250,000,000 principal amount of 2010 Notes, up to $500,000,000 principal amount of 2013 Notes and up to $1,000,000,000 principal amount of 2018 Notes, all upon Company Order for the authentication and delivery of Notes, without any further action by the Company. The authorized aggregate principal amount of Notes of each series may be increased at any time hereafter and each series may be reopened for issuances of additional Securities as provided in the last paragraph of Section 2.2 of the Original Indenture, so long as such additional Securities are fungible for U.S. federal income tax purposes with the 2010 Notes, the 2013 Notes or the 2018 Notes, as applicable, issued on the date hereof. The 2010 Notes issued on the date hereof and any additional 2010 Notes that may be issued hereafter shall be part of the same series of Securities. The 2013 Notes issued on the date hereof and any additional 2013 Notes that may be issued hereafter shall be part of the same series of Securities. The 2018 Notes issued on the date hereof and any additional 2018 Notes that may be issued hereafter shall be part of the same series of Securities.

SECTION 1.3. Redemption and Repurchase.

(a) There shall be no sinking fund for the retirement of the Notes or other mandatory redemption or repurchase obligation.

(b) The Company, at its option, may redeem the Notes in accordance with the provisions of the Notes and the Indenture, including, without limitation, Section 10.8.

SECTION 1.4. Conversion.

The Notes shall not be convertible into any other securities.

SECTION 1.5. Maturity.

The Stated Maturity of the 2010 Notes shall be August 1, 2010. The Stated Maturity of the 2013 Notes shall be December 15, 2013. The Stated Maturity of the 2018 Notes shall be December 15, 2018.

SECTION 1.6. Other Terms of Notes.

Without limiting the foregoing provisions of this Article 1, the terms of the 2010 Notes shall be as provided in the form of 2010 Notes set forth in Exhibit A hereto and as provided in the Indenture, the terms of the 2013 Notes shall be as provided in the form of 2013 Notes set forth in Exhibit B hereto and as provided in the Indenture, and the terms of the 2018 Notes shall be as provided in the form of 2018 Notes set forth in Exhibit C hereto and as provided in the Indenture.

 

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ARTICLE 2

AMENDMENTS TO THE INDENTURE

The amendments and supplements contained herein shall apply to Notes only and not to any other series of Securities issued under the Indenture and any covenants provided herein are expressly being included solely for the benefit of the Notes. These amendments and supplements shall be effective for so long as there remains any Note outstanding.

SECTION 2.1. Definitions.

Section 1.1 of the Original Indenture is amended and supplemented by inserting or restating, as the case may be, in their appropriate alphabetical position, the following definitions:

“2010 Notes” means the 5.00% Senior Notes due 2010 of the Company to be issued pursuant to this Indenture.

“2010 Note Issue Date” means the first day on which the Company issues the 2010 Notes under the Indenture.

“2013 Notes” means the 5.75% Senior Notes due 2013 of the Company to be issued pursuant to this Indenture.

“2013 Note Issue Date” means the first day on which the Company issues the 2013 Notes under this Indenture.

“2018 Notes” means the 6.50% Senior Notes due 2018 of the Company to be issued pursuant to this Indenture.

“2018 Note Issue Date” means the first day on which the Company issues the 2018 Notes under this Indenture.

“Additional 2010 Notes” means 5.00% Senior Notes due 2010 issued from time to time after the 2010 Note Issue Date under the terms of this Indenture (other than pursuant to Section 2.8, 2.9, 2.11 or 10.7 of this Indenture).

“Additional 2013 Notes” means 5.75% Senior Notes due 2013 issued from time to time after the 2013 Note Issue Date under the terms of this Indenture (other than pursuant to Section 2.8, 2.9, 2.11 or 10.7 of this Indenture).

“Additional 2018 Notes” means 6.50% Senior Notes due 2018 issued from time to time after the 2018 Note Issue Date under the terms of this Indenture (other than pursuant to Section 2.8, 2.9, 2.11 or 10.7 of this Indenture).

“Notes” means the 2010 Notes, the 2013 Notes and the 2018 Notes.

 

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“Regular Record Date” for the interest payable on the Notes on any Interest Payment Date means, with respect to the 2013 Notes and the 2018 Notes, the June 1 or December 1 (whether or not a Business Day) and, with respect to the 2010 Notes, the January 15 or July 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.

“Make-Whole Amount” with respect to a Note means an amount equal to the excess, if any, of (1) the present value of the remaining interest, premium and principal payments due on such Note (excluding any portion of such payments of interest accrued as of the Redemption Date), computed using a discount rate equal to the Treasury Rate plus 37.5 basis points (in the case of the 2010 Notes), 37.5 basis points (in the case of the 2013 Notes) or 37.5 basis points (in the case of the 2018 Notes), over (2) the outstanding principal amount of such Note. As used herein, “Treasury Rate” is defined as the yield to maturity (calculated on semi-annual bond-equivalent basis) at the time of the computation of United States Treasury securities with a constant maturity (as compiled by and published in the most recent Federal Reserve Statistical Release H.15 (510), which has become publicly available at least two business days prior to the date of the redemption notice or, if such Statistical Release is no longer published, any publicly available source of similar market data) most nearly equal to the then remaining maturity of such Note; provided that if the Make-Whole Average Life of such Note is not equal to the constant maturity of the United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the Make-Whole Average Life of such Note is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used. As used herein, “Make-Whole Average Life” means the number of years (calculated to the nearest one-twelfth) between the Redemption Date and the Stated Maturity of such Note.

“MLP Subsidiary” means (i) any Subsidiary of the Company that is organized as a master limited partnership (or limited liability company or similar business entity with pass-through treatment for U.S. Federal income tax purposes) that, within two years of its organization, has a class of equity securities listed or eligible for trading on The New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market and (ii) any Subsidiary of the Subsidiary of the Company referred to in the preceding clause (i). Any Subsidiary referred to in clause (i) of this paragraph shall be and continue as an MLP Subsidiary until the second anniversary of its organization notwithstanding that it does not have a class of equity securities listed or eligible for trading on The New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market; provided , that such Subsidiary shall cease to be an MLP Subsidiary on such second anniversary if, on such date, it does not have a class of equity securities so listed or eligible.

“Restricted Subsidiary” means any Subsidiary of the Company (excluding any oil and gas royalty trust Subsidiary and any MLP Subsidiary) owning or leasing, directly or indirectly through ownership in another Subsidiary, any Principal Property.

 

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SECTION 2.2. Events of Default.

Section 4.1(e) of the Original Indenture is amended to read in its entirety as follows:

(e) the occurrence and continuation beyond any applicable grace period of any default in the payment of the principal of (or premium, if any, on) or interest on any Debt of the Company (other than such Securities) or any Subsidiary when due, or any other default causing acceleration of any Debt of the Company or any Subsidiary; provided that the aggregate principal amount of such Debt shall exceed $100,000,000; provided further that if any such default is cured or waived or any such acceleration rescinded, or such Debt is repaid, within a period of 10 days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, such Event of Default under this Indenture and any consequential acceleration of such Securities shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree.

SECTION 2.3. Acceleration of Maturity.

Section 4.2 of the Original Indenture is amended by adding the following paragraphs as the second and third paragraphs thereof:

Notwithstanding the foregoing to the extent elected by the Company, the sole remedy for an Event of Default relating to the failure by the Company to comply with the provisions of Section 9.9 shall, for the first 120 days after the occurrence of such an Event of Default, consist exclusively of the right to receive special interest (“Special Interest”) on the Notes at an annual rate equal to 0.50% of the principal amount of the Notes. Such Special Interest shall be paid semi-annually in arrears, with the first semi-annual payment due on the first Interest Payment Date following the date on which such Special Interest began to accrue on the Notes. Special Interest shall accrue on all Outstanding Notes from and including the date on which an Event of Default relating to a failure to comply with the provisions of Section 9.9 shall first occur to but not including the 120 ^th day thereafter (or such earlier date on which such Event of Default shall have been cured or waived). On such 120 ^th day (or earlier, if the Event of Default relating to the failure to comply with Section 9.9 shall be cured or waived prior to such 120 ^th day), such Special Interest shall cease to accrue and, if the Event of Default relating to the failure to comply with Section 9.9 shall not have been cured or waived prior to such 120 ^th day, the Notes shall be subject to acceleration as provided in this Section 4.2. The provisions of this paragraph shall not affect the rights of holders in the event of the occurrence of any other Event of Default. In the event the Company shall not elect to pay Special Interest upon an Event of Default resulting from the failure of the Company to comply with the provisions of Section 9.9, the Notes shall be subject to acceleration as provided above in this Section 4.2.

If the Company shall elect to pay Special Interest in connection with an Event of Default relating to its failure to comply with the requirements of Section 9.9, (1) the Company shall notify all Holders and the Trustee and Paying Agent of such election in writing on or before the close of business on the date on which such Event of Default shall first occur, and (2) all references herein to interest accrued or payable as of any date shall include any Special Interest accrued or payable as of such date as provided in this Section 4.2.

 

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SECTION 2.4. Force Majeure.

Article XIII of the Original Indenture is amended by adding the following Section 13.15 thereto:

S ECTION  13.15 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 strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

SECTION 2.5. Waiver of Jury Trial.

Article XIII of the Original Indenture is amended by adding the following Section 13.16 thereto:

S ECTION  13.16 Waiver of Jury Trial.

EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.

ARTICLE 3

MISCELLANEOUS PROVISIONS

SECTION 3.1. Integral Part.

This Third Supplemental Indenture constitutes an integral part of the Indenture.

SECTION 3.2. Rules of Construction.

For all purposes of this Third Supplemental Indenture:

(a) capitalized terms used herein without definition shall have the meanings specified in the Original Indenture; and

(b) the terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Third Supplemental Indenture.

 

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SECTION 3.3. Adoption, Ratification and Confirmation.

The Original Indenture, as supplemented and amended by the First Supplemental Indenture dated as of July 19, 2007, the Second Supplemental Indenture dated as of April 18, 2008 and this Third Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.

SECTION 3.4. Counterparts.

This Third Supplemental Indenture may be executed in any number of counterparts, each of which when so executed shall be deemed an original; and all such counterparts shall together constitute but one and the same instrument.

SECTION 3.5. Benefits of Indenture.

Nothing in this Third Supplemental Indenture or in the Notes, express or implied, shall give to any Person (other than the parties hereto, any Paying Agent, any Securities Registrar and their successors hereunder and the Holders) any benefit or any legal or equitable right, remedy or claim under the Indenture.

SECTION 3.6. Governing Law.

THIS THIRD SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THE TRUST INDENTURE ACT IS APPLICABLE.

SECTION 3.7. Supplemental Indenture Controls

In the event there is any conflict or inconsistency between the Original Indenture and this Third Supplemental Indenture, the provisions of this Third Supplemental Indenture shall control.

SECTION 3.8. Trustee.

The Trustee makes no representations as to the validity or sufficiency of this Third Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company and not the Trustee.

Remainder of Page Intentionally Left Blank

 

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IN WITNESS WHEREOF , the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the day and year first written above.

 

 

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EXHIBIT A

[FORM OF FACE OF 2010 NOTE]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE 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. ¹

1	These paragraphs should be included only if the Security is a Global Security.

 

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XTO ENERGY INC.

5.00% SENIOR NOTE DUE 2010

 

XTO Energy Inc., a Delaware corporation (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to                                          or registered assigns the principal sum of                      Dollars on August 1, 2010 or such greater or lesser amount as is indicated on the Schedule of Exchanges of Securities attached hereto ² , at the office or agency of the Company referred to below, and to pay interest thereon, commencing on February 1, 2009 and continuing semiannually thereafter, on February 1 and August 1 of each year, from August 7, 2008 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 5.00% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand, interest on any overdue interest at the rate borne by the Securities from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. In the circumstances indicated in Section 4.2 of the Indenture, the Company may elect to pay Special Interest on this Security, at the rate stated therein, and all references in this Security to interest accrued or payable as of any date shall include any Special Interest accrued or payable as of such date, as provided in such Section 4.2. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the January 15 or July 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Interest on the Securities of this series shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

Payment of the principal of, premium, if any, and interest on this Security will be made at the office or agency of the Company maintained for that purpose in the City of New York, and at such other office or agency of the Company as may be maintained for such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided however , that payment of interest may be made at the option of the Company (i) by check mailed to Holders at their respective addresses as shown in the Security Register or (ii) with respect to any Holder owning Securities in the principal amount

2	This clause should be included only if the Security is a Global Security.

 

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of $500,000 or more, by wire transfer to an account maintained by the Holder located in the United States, as specified in a written notice to the Trustee (received prior to the relevant record date) by any such Holder requesting payment by wire transfer and specifying the account to which transfer is requested. Notwithstanding the foregoing, so long as this Security is registered in the name of a Depositary or its nominee, all payments hereon shall be made by wire transfer of immediately available funds to the account of such Depositary or its nominee. The Holder must surrender this Security to a Paying Agent to collect payment of principal.

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been duly executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

[SEAL]

 

				XTO ENERGY INC.
				By:
				Name:
				Title:

 

Attest:

Secretary

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.

 

Dated: August 7, 2008				THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
				By:
						Authorized Signatory

 

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FORM OF REVERSE OF 2010 NOTE

This Security is one of a duly authorized issue of the series of securities of the Company designated as its 5.00% Senior Notes due 2010 (herein called the “Securities”), which is issued under, with securities of one or more additional series that may be issued under, the Indenture dated as of July 19, 2007, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), as amended and supplemented by the First Supplemental Indenture dated as of July 19, 2007, the Second Supplemental Indenture dated as of April 18, 2008 and the Third Supplemental Indenture dated as of August 7, 2008 (such Indenture, as so amended and supplemented, being called the “Indenture”), to which Indenture and all future indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered.

The Securities are subject to redemption at the option of the Company, in whole or in part, at any time and from time to time, upon not less than 30 or more than 60 days’ notice, at a Redemption Price of 100% of their principal amount plus a Make-Whole Amount, together in the case of any such redemption with accrued and unpaid interest to the Redemption Date (subject to the right of Holders of record on the relevant Regular Record D