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EXHIBIT
4.1
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CHESAPEAKE
ENERGY CORPORATION,
as
Issuer,
THE
SUBSIDIARY GUARANTORS,
as
Guarantors,
AND
THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
as
Trustee
____________________________
INDENTURE
DATED
AS OF MAY 27, 2008
____________________________
7.25%
SENIOR NOTES DUE 2018
____________________________
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CROSS-REFERENCE
TABLE
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TIA
SECTION
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INDENTURE
SECTION
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310
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(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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N.A.
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(a)(4)
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N.A.
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(a)(5)
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7.08
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(b)
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7.08;
7.10
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(c)
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N.A.
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311
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(a)
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7.11
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(b)
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7.11
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(c)
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N.A.
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312
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(a)
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2.05
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(b)
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11.03
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(c)
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11.03
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313
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(a)
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7.06
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(b)(1)
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N.A.
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(b)(2)
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7.06
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(c)
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7.06;
11.02
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(d)
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7.06
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314
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(a)
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4.02;
4.03; 11.02
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(b)
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N.A.
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(c)(1)
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11.04
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(c)(2)
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11.04
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(c)(3)
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N.A.
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(d)
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N.A.
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(e)
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11.05
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(f)
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N.A.
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315
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(a)
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7.01(b)
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(b)
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7.05;
11.02
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(c)
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7.01(a)
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(d)
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7.01(c)
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(e)
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6.11
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316
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(a)(last
sentence)
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2.09
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(a)(1)(A)
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6.05
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(a)(1)(B)
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6.02;
6.04; 9.02
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(a)(2)
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N.A.
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(b)
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6.07
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(c)
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N.A.
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317
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(a)(1)
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6.08
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(a)(2)
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6.09
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(b)
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2.04
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318
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(a)
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11.01
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318
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(c)
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11.01
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-------------------------
N.A.
means Not Applicable
NOTE:
This Cross-Reference table shall not, for any purpose, be
deemed part of this Indenture.
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TABLE
OF CONTENTS
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Pages
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ARTICLE
ONE
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DEFINITIONS
AND INCORPORATION BY REFERENCE
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SECTION
1.01. Definitions.
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1
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SECTION
1.02. Other Definitions.
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9
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SECTION
1.03. Incorporation by Reference of Trust Indenture
Act
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10
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ARTICLE
TWO
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THE
SECURITIES
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SECTION
2.01. Form and Dating
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11
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SECTION
2.02. Execution and Authentication
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11
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SECTION
2.03. Registrar and Paying Agent
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11
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SECTION
2.04. Paying Agent to Hold Money in
Trust
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12
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SECTION
2.05. Holder Lists
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12
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SECTION
2.06. Transfer and Exchange
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12
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SECTION
2.07. Replacement Securities
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12
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SECTION
2.08. Outstanding Securities
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12
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SECTION
2.09. Temporary Securities
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13
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SECTION
2.10. Cancelation
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13
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SECTION
2.11. Defaulted Interest
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13
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SECTION
2.12. CUSIP Numbers
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13
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SECTION
2.13. Issuance of Additional
Securities
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13
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ARTICLE
THREE
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REDEMPTION
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SECTION
3.01. Notice to Trustee
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14
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SECTION
3.02. Selection of Securities to Be
Redeemed
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14
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SECTION
3.03. Notice of Redemption
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14
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SECTION
3.04. Effect of Notice of Redemption
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15
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SECTION
3.05. Deposit of Redemption Price
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15
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SECTION
3.06. Securities Redeemed in Part
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15
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SECTION
3.07. Optional Redemption at Make-Whole
Price
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15
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ARTICLE
FOUR
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COVENANTS
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SECTION
4.01. Payment of Securities
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15
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SECTION
4.02. SEC Reports
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16
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SECTION
4.03. Compliance Certificates
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16
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SECTION
4.04. Maintenance of Office or Agency
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17
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SECTION
4.05. Corporate Existence
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17
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SECTION
4.06. Waiver of Stay, Extension or Usury
Laws
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17
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SECTION
4.07. Payment of Taxes and Other
Claims
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17
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SECTION
4.08. Maintenance of Properties and
Insurance
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17
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SECTION
4.09. Limitation on Liens Securing
Indebtedness
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18
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SECTION
4.10. Limitation on Sale/Leaseback
Transactions
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18
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ARTICLE
FIVE
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SUCCESSOR
CORPORATION
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SECTION
5.01. When Company May Merge, etc
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19
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SECTION
5.02. Successor Corporation
Substituted
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20
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ARTICLE
SIX
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DEFAULTS
AND REMEDIES
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SECTION
6.01. Events of Default
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20
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SECTION
6.02. Acceleration
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22
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SECTION
6.03. Other Remedies
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22
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SECTION
6.04. Waiver of Past Defaults
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22
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SECTION
6.05. Control by Majority
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22
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SECTION
6.06. Limitation on Remedies
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22
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SECTION
6.07. Rights of Holders to Receive
Payment
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23
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SECTION
6.08. Collection Suit by Trustee
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23
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SECTION
6.09. Trustee May File Proofs of Claim
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23
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SECTION
6.10. Priorities
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23
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SECTION
6.11. Undertaking for Costs
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24
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ARTICLE
SEVEN
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TRUSTEE
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SECTION
7.01. Duties of Trustee
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24
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SECTION
7.02. Rights of Trustee
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25
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SECTION
7.03. Individual Rights of Trustee
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26
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SECTION
7.04. Trustee’s Disclaimer
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26
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SECTION
7.05. Notice of Defaults
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26
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SECTION
7.06. Reports by Trustee to Holders
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26
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SECTION
7.07. Compensation and Indemnity
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26
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SECTION
7.08. Replacement of Trustee
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27
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SECTION
7.09. Successor Trustee by Merger, etc
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27
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SECTION
7.10. Eligibility; Disqualification
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27
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SECTION
7.11. Preferential Collection of Claims Against
Company
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28
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ARTICLE
EIGHT
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DISCHARGE
OF INDENTURE
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SECTION
8.01. Option to Effect Legal Defeasance or Covenant
Defeasance.
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28
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SECTION
8.02. Legal Defeasance and Discharge
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28
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SECTION
8.03. Covenant Defeasance
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28
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SECTION
8.04. Conditions to Legal or Covenant
Defeasance
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29
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SECTION
8.05. Deposited Money and U.S. Government
Securities to be Held in Trust; Other Miscellaneous
Provisions
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29
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SECTION
8.06. Repayment to Company
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30
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SECTION
8.07. Reinstatement
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30
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ARTICLE
NINE
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AMENDMENTS,
SUPPLEMENTS AND WAIVERS
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SECTION
9.01. Without Consent of Holders.
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31
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SECTION
9.02. With Consent of Holders
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31
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SECTION
9.03. Compliance with Trust Indenture
Act
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32
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SECTION
9.04. Revocation and Effect of
Consents
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32
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SECTION
9.05. Notation on or Exchange of Senior
Notes
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33
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SECTION
9.06. Trustee Protected
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33
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ARTICLE
TEN
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GUARANTEES
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SECTION
10.01. Unconditional Guarantee
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33
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SECTION
10.02. Subsidiary Guarantors May Consolidate, etc.,
on Certain Terms
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34
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SECTION
10.03. Addition of Subsidiary
Guarantors
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34
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SECTION
10.04. Release of a Subsidiary
Guarantor
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35
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SECTION
10.05. Limitation of Subsidiary Guarantor’s
Liability
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35
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SECTION
10.06. Contribution
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35
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SECTION
10.07. [Intentionally Omitted.]
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35
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SECTION
10.08. Severability
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35
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ARTICLE
ELEVEN
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MISCELLANEOUS
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SECTION
11.01. Trust Indenture Act Controls
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36
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SECTION
11.02. Notices
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36
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SECTION
11.03. Communication by Holders with Other
Holders
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37
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SECTION
11.04. Certificate and Opinion as to Conditions
Precedent
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37
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SECTION
11.05. Statements Required in Certificate or
Opinion
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37
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SECTION
11.06. Rules by Trustee and Agents
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37
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SECTION
11.07. Legal Holidays
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37
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SECTION
11.08. Governing Law
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37
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SECTION
11.09. No Adverse Interpretation of Other
Agreements
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37
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SECTION
11.10. No Recourse Against Others
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38
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SECTION
11.11. Successors
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38
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SECTION
11.12. Duplicate Originals
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38
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SECTION
11.13. Severability
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38
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SECTION
11.14. Force Majeure
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38
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EXHIBIT
1 TO THE APPENDIX -
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_________________
NOTE: This
Table of Contents shall not, for any purpose, be deemed to be
a part of this Indenture.
INDENTURE,
dated as of May 27, 2008, among CHESAPEAKE ENERGY
CORPORATION, an Oklahoma corporation (the
“Company”), the SUBSIDIARY GUARANTORS listed as
signatories hereto and THE BANK OF NEW YORK TRUST COMPANY,
N.A., a national banking association, as Trustee.
Each
party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the
Company’s 7.25% Senior Notes due 2018:
ARTICLE
ONE
DEFINITIONS
AND INCORPORATION BY REFERENCE
SECTION
1.01.
Definitions.
“Additional
Securities” means 7.25% Senior Notes due 2018 issued
from time to time after the Issue Date under the terms of this
Indenture (other than pursuant to Section 2.06, 2.07, 2.09 or
3.06 of this Indenture).
“Adjusted
Consolidated Net Tangible Assets” or “ACNTA”
means (without duplication), as of the date of determination,
(a) the sum of (i) discounted future net revenue
from proved oil and gas reserves of the Company and its
Subsidiaries calculated in accordance with SEC guidelines
before any state or federal income taxes, as estimated by
petroleum engineers (which may include the Company’s
internal engineers) in a reserve report prepared as of the end
of the Company’s most recently completed fiscal year, as
increased by, as of the date of determination, the discounted
future net revenue of (A) estimated proved oil and gas
reserves of the Company and its Subsidiaries attributable to
any acquisition consummated since the date of such year-end
reserve report, and (B) estimated proved oil and gas
reserves of the Company and its Subsidiaries attributable to
extensions, discoveries and other additions and upward
revisions of estimates of proved oil and gas reserves due to
exploration, development or exploitation, production or other
activities conducted or otherwise occurring since the date of
such year-end reserve report, which, in the case of
sub-clauses (A) and (B), would, in accordance with
standard industry practice, result in such increases as
calculated in accordance with SEC guidelines (utilizing the
prices utilized in such year-end reserve report), and
decreased by, as of the date of determination, the discounted
future net revenue of (C) estimated proved oil and gas
reserves of the Company and its Subsidiaries produced or
disposed of since the date of such year-end reserve report and
(D) reductions in the estimated oil and gas reserves of
the Company and its Subsidiaries since the date of such
year-end reserve report attributable to downward revisions of
estimates of proved oil and gas reserves due to exploration,
development or exploitation, production or other activities
conducted or otherwise occurring since the date of such
year-end reserve report which, in the case of sub-clauses
(C) and (D), would, in accordance with standard industry
practice, result in such decreases as calculated in accordance
with SEC guidelines (utilizing the prices utilized in such
year-end reserve report); provided
that, in the case of each of the determinations made pursuant
to clauses (A) through (D), such increases and decreases shall
be as estimated by the Company’s engineers,
(ii) the capitalized costs that are attributable to oil
and gas properties of the Company and its Subsidiaries to
which no proved oil and gas reserves are attributable, based
on the Company’s books and records as of a date no
earlier than the date of the Company’s latest annual or
quarterly financial statements, (iii) the Net Working
Capital on a date no earlier than the date of the
Company’s latest annual or quarterly financial
statements and (iv) the greater of (I) the net book
value on a date no earlier than the date of the
Company’s latest annual or quarterly financial
statements and (II) the appraised value, as estimated by
independent appraisers, of other tangible assets (including
Investments in unconsolidated Subsidiaries) of the Company and
its Subsidiaries, as of a date no earlier than the date of the
Company’s latest audited financial statements, minus
(b) the sum of (i) minority interests, (ii) any
gas balancing liabilities of the Company and its Subsidiaries
reflected as a long-term liability in the Company’s
latest annual or quarterly financial statements,
(iii) the discounted future net revenue, calculated in
accordance with SEC guidelines (utilizing the prices utilized
in the Company’s year-end reserve report), attributable
to reserves which are required to be delivered to third
parties to fully satisfy the obligations of the Company and
its Subsidiaries with respect to Volumetric Production
Payments on the schedules specified with respect thereto,
(iv) the discounted future net revenue, calculated in
accordance with SEC guidelines, attributable to reserves
subject to Dollar-Denominated Production Payments which, based
on the estimates of production included in determining the
discounted future net revenue specified in (a) (i) above
(utilizing the same prices utilized in the Company’s
year-end reserve report), would be necessary to fully satisfy
the payment obligations of the Company and its Subsidiaries
with respect to Dollar-Denominated Production Payments on the
schedules specified with respect thereto and (v) the
discounted future net revenue, calculated in accordance with
SEC guidelines (utilizing the same prices utilized in the
Company’s year-end reserve report), attributable to
reserves subject to participation interests, overriding
royalty interests or other interests of third parties,
pursuant to participation, partnership, vendor financing or
other agreements then in effect, or which otherwise are
required to be delivered to third parties. If the
Company changes its method of accounting from the full cost
method to the successful efforts method or a similar method of
accounting, Adjusted Consolidated Net Tangible Assets will
continue to be calculated as if the Company were still using
the full cost method of accounting.
“Adjusted
Net Assets of a Subsidiary Guarantor” at any date shall
mean the lesser of (i) the amount by which the fair value
of the property of such Subsidiary Guarantor exceeds the total
amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date),
but excluding liabilities under the Guarantee of such
Subsidiary Guarantor at such date and (ii) the amount by
which the present fair saleable value of the assets of such
Subsidiary Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Subsidiary
Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date
and after giving effect to any collection from any Subsidiary
of such Subsidiary Guarantor in respect of the obligations of
such Subsidiary under the Guarantee), excluding debt in
respect of the Guarantee, as they become absolute and
matured.
“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
the management and policies of such Person directly or
indirectly, whether through the ownership of Voting Stock, by
contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the
foregoing.
“Agent”
means any Registrar, Paying Agent or
co-registrar.
“Attributable
Indebtedness” means, with respect to any particular
lease under which any Person is at the time liable and at any
date as of which the amount thereof is to be determined, the
present value of the total net amount of rent required to be
paid by such Person under the lease during the primary term
thereof, without giving effect to any renewals at the option
of the lessee, discounted from the respective due dates
thereof to such date at the rate of interest per annum
implicit in the terms of the lease. As used in the preceding
sentence, the “net amount of rent” under any lease
for any such period shall mean the sum of rental and other
payments required to be paid with respect to such period by
the lessee thereunder excluding any amounts required to be
paid by such lessee on account of maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges.
In the case of any lease which is terminable by the lessee
upon payment of a penalty, such net amount of rent shall also
include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent
to the first date upon which it may be so
terminated.
“Average
Life” means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing
(i) the product of (x) the number of years from such
date to the date of each successive scheduled principal
payment of such Indebtedness multiplied by (y) the amount
of such principal payment by (ii) the sum of all such
principal payments.
“Board
of Directors” means, with respect to any Person, the
Board of Directors of such Person or any committee of the
Board of Directors of such Person duly authorized to act on
behalf of the Board of Directors of such Person.
“Board
Resolution” means, with respect to any Person, a copy of
a resolution certified by the Secretary or an Assistant
Secretary of such Person to have been duly adopted by the
Board of Directors or the managing partner(s) of such
Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
“Business
Day” means any day on which the New York Stock Exchange,
Inc. is open for trading and which is not a Legal
Holiday.
“Capital
Stock” means, with respect to any Person, any and all
shares, interests, participations or other equivalents
(however designated) of corporate stock or partnership or
limited liability company interests and any and all warrants,
options and rights with respect thereto (whether or not
currently exercisable), including each class of common stock
and preferred stock of such Person.
“Capitalized
Lease Obligations” of any Person means the obligations
of such Person to pay rent or other amounts under a lease of
property, real or personal, that is required to be capitalized
for financial reporting purposes in accordance with GAAP, and
the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
“Company”
means the party named as such above, until a successor
replaces such Person in accordance with the terms of this
Indenture, and thereafter means such successor.
“Credit
Facilities” means one or more debt facilities
(including, without limitation, the Company’s existing
credit facility) or commercial paper facilities, in each case
with banks, investment banks, insurance companies, mutual
funds and/or other institutional lenders providing for
revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or
to special purpose entities formed to borrow from (or sell
receivables to) such lenders against such receivables) or
letters of credit, in each case, as amended, extended,
restated, renewed, refunded, replaced or refinanced (in each
case with Credit Facilities), supplemented or otherwise
modified (in whole or in part and without limitation as to
amount, terms, conditions, covenants and other provisions)
from time to time.
“Currency
Hedge Obligations” means, at any time as to the Company
and its Subsidiaries, the obligations of any such Person at
such time that were incurred in the ordinary course of
business pursuant to any foreign currency exchange agreement,
option or futures contract or other similar agreement or
arrangement designed to protect against or manage such
Person’s or any of its Subsidiaries’ exposure to
fluctuations in foreign currency exchange rates.
“Default”
means any event which is, or after notice or passage of time
would be, an Event of Default.
“De
Minimis Guaranteed Amount” means a principal amount of
Indebtedness that does not exceed $5,000,000.
“Disqualified
Stock” means any Capital Stock of the Company or any
Subsidiary of the Company which, by its terms (or by the terms
of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event or with
the passage of time, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in
part, on or prior to the Maturity Date or which is
exchangeable or convertible into debt securities of the
Company or any Subsidiary of the Company, except to the extent
that such exchange or conversion rights cannot be exercised
prior to the Maturity Date.
“Dollar-Denominated
Production Payments” means production payment
obligations recorded as liabilities in accordance with GAAP,
together with all undertakings and obligations in connection
therewith.
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC
thereunder.
“Existing
Notes” means the Company’s outstanding (a) 7.5%
Senior Notes due 2013, (b) 7.625% Senior Notes due 2013,
(c) 7.5% Senior Notes due 2014, (d) 7.00% Senior Notes
due 2014, (e) 7.75% Senior Notes due 2015, (f) 6.375%
Senior Notes due 2015, (g) 6.875% Senior Notes due 2016, (h)
6.625% Senior Notes due 2016, (i) 6.25% Euro-denominated
Senior Notes due 2017, (j) 6.5% Senior Notes due 2017, (k)
6.25% Senior Notes due 2018, (l) 6.875% Senior Notes due 2020,
(m) 2.75% Contingent Convertible Senior Notes due 2035, (n)
2.500% Contingent Convertible Senior Notes due 2037 and (o)
2.25% Contingent Convertible Senior Notes due
2038.
“GAAP”
means generally accepted accounting principles as in effect in
the United States of America as of the Issue
Date.
“Guarantee”
means, individually and collectively, the guarantees given by
the Subsidiary Guarantors pursuant to Article Ten
hereof.
“Holder”
means a Person in whose name a Security is registered on the
Registrar’s books.
“Indebtedness”
means, without duplication, with respect to any Person,
(a) all obligations of such Person (i) in respect of
borrowed money (whether or not the recourse of the lender is
to the whole of the assets of such Person or only to a portion
thereof), (ii) evidenced by bonds, notes, debentures or
similar instruments, (iii) representing the balance
deferred and unpaid of the purchase price of any property or
services (other than accounts payable or other obligations
arising in the ordinary course of business),
(iv) evidenced by bankers’ acceptances or similar
instruments issued or accepted by banks, (v) for the
payment of money relating to a Capitalized Lease Obligation,
or (vi) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any
letter of credit; (b) all net obligations of such Person
under Interest Rate Hedging Agreements, Oil and Gas Hedging
Contracts and Currency Hedge Obligations, except to the extent
such net obligations are taken into account in the
determination of future net revenues from proved oil and gas
reserves for purposes of the calculation of Adjusted
Consolidated Net Tangible Assets; (c) all liabilities of
others of the kind described in the preceding clauses (a) or
(b) that such Person has guaranteed or that are otherwise its
legal liability (including, with respect to any Production
Payment, any warranties or guaranties of production or payment
by such Person with respect to such Production Payment but
excluding other contractual obligations of such Person with
respect to such Production Payment); (d) Indebtedness (as
otherwise defined in this definition) of another Person
secured by a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person, the amount of
such obligations being deemed to be the lesser of (1) the
full amount of such obligations so secured, and (2) the
fair market value of such asset, as determined in good faith
by the Board of Directors of such Person, which determination
shall be evidenced by a Board Resolution, (e) with
respect to such Person, the liquidation preference or any
mandatory redemption payment obligations in respect of
Disqualified Stock; (f) the aggregate preference in
respect of amounts payable on the issued and outstanding
shares of Preferred Stock of any of such Person’s
Subsidiaries in the event of any voluntary or involuntary
liquidation, dissolution or winding up (excluding any such
preference attributable to such shares of Preferred Stock that
are owned by such Person or any of its Subsidiaries;
provided
, that if such Person is the Company, such exclusion shall be
for such preference attributable to such shares of Preferred
Stock that are owned by the Company or any of its
Subsidiaries); and (g) any and all deferrals, renewals,
extensions, refinancings and refundings (whether direct or
indirect) of, or amendments, modifications or supplements to,
any liability of the kind described in any of the preceding
clauses (a), (b), (c), (d), (e), (f) or this clause (g),
whether or not between or among the same
parties. Subject to clause (c) of the
preceding sentence, neither Dollar-Denominated Production
Payments nor Volumetric Production Payments shall be deemed to
be Indebtedness.
“Indenture”
means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
“Interest
Rate Hedging Agreements” means, with respect to the
Company and its Subsidiaries, the obligations of such Persons
under (i) interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements and
(ii) other agreements or arrangements designed to protect
any such Person or any of its Subsidiaries against
fluctuations in interest rates.
“Investment”
of any Person means (i) all investments by such Person in
any other Person in the form of loans, advances or capital
contributions, (ii) all guarantees of Indebtedness or
other obligations of any other Person by such Person,
(iii) all purchases (or other acquisitions for
consideration) by such Person of assets, Indebtedness, Capital
Stock or other securities of any other Person and
(iv) all other items that would be classified as
investments (including, without limitation, purchases of
assets outside the ordinary course of business) or advances on
a balance sheet of such Person prepared in accordance with
GAAP.
“Issue
Date” means May 27, 2008.
“Lien”
means, with respect to any Person, any mortgage, pledge, lien,
encumbrance, easement, restriction, covenant, right-of-way,
charge or adverse claim affecting title or resulting in an
encumbrance against real or personal property of such Person,
or a security interest of any kind (including any conditional
sale or other title retention agreement, any lease in the
nature thereof, any option, right of first refusal or other
similar agreement to sell, in each case securing obligations
of such Person and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or
equivalent statute or statutes) of any
jurisdiction).
“Make-Whole
Amount” with respect to a Security means an amount equal
to the excess, if any, of (i) the present value of the
remaining interest, premium and principal payments due on such
Security (excluding any portion of such payments of interest
accrued as of the redemption date) as if such Security were
redeemed on the Maturity Date, computed using a discount rate
equal to the Treasury Rate plus 50 basis points, over
(ii) the outstanding principal amount of such
Security. As used herein, “Treasury
Rate” is defined as the yield to maturity (calculated on
a 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 (519), 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 the Securities assuming redemption of
the Securities on the Maturity Date; provided
, however ,
that if the Make-Whole Average Life of such Security 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 Securities 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 date of redemption and the
Maturity Date.
“Make-Whole
Price” means the sum of the outstanding principal amount
of the Securities to be redeemed plus the Make-Whole Amount of
such Securities.
“Maturity
Date” means December 15, 2018.
“Moody’s”
means Moody’s Investors Service, Inc. or any successor
to the rating agency business thereof.
“Net
Available Proceeds” means, with respect to any
Sale/Leaseback Transaction of any Person, cash proceeds
received (including any cash proceeds received by way of
deferred payment of principal pursuant to a note or
installment receivable or otherwise, but only as and when
received, and excluding any other consideration until such
time as such consideration is converted into cash) therefrom,
in each case net of all legal, title and recording tax
expenses, commissions and other fees and expenses incurred,
and all federal, state or local taxes required to be accrued
as a liability as a consequence of such Sale/Leaseback
Transaction, and in each case net of all Indebtedness which is
secured by such assets, in accordance with the terms of any
Lien upon or with respect to such assets, or which must, by
its terms or in order to obtain a necessary consent to such
Sale/Leaseback Transaction or by applicable law, be repaid out
of the proceeds from such Sale/Leaseback Transaction and which
is actually so repaid.
“Net
Working Capital” means (i) all current assets of
the Company and its Subsidiaries, minus (ii) all current
liabilities of the Company and its Subsidiaries, except
current liabilities included in Indebtedness.
“Officer”
means, with respect to any Person, the Chairman of the Board,
the President, any Vice President, the Chief Financial Officer
or the Treasurer of such Person.
“Officers’
Certificate” means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either
the Secretary, or an Assistant Secretary or Assistant
Treasurer of such Person. One of the Officers
signing an Officers’ Certificate given pursuant to
Section 4.03(a) shall be the principal executive,
financial or accounting officer of the Person delivering such
certificate.
“Oil
and Gas Business” means the business of the exploration
for, and exploitation, development, production, processing
(but not refining), marketing, storage and transportation of,
hydrocarbons, and other related energy and natural resource
businesses (including oil and gas services businesses related
to the foregoing).
“Oil
and Gas Hedging Contracts” means any oil and gas
purchase or hedging agreement, and other agreement or
arrangement, in each case, that is designed to provide
protection against price fluctuations of oil, gas or other
commodities.
“Opinion
of Counsel” means a written opinion from legal
counsel. The counsel may be an employee of or
counsel to the Company (or any Subsidiary Guarantor, if
applicable).
“Permitted
Company Refinancing Indebtedness” means Indebtedness of
the Company, the net proceeds of which are used to renew,
extend, refinance, refund or repurchase outstanding
Indebtedness of the Company, provided
that (i) if the Indebtedness (including the Securities)
being renewed, extended, refinanced, refunded or repurchased
is pari passu with or subordinated in right of payment to the
Securities, then such Indebtedness is pari passu or
subordinated in right of payment to, as the case may be, the
Securities at least to the same extent as the Indebtedness
being renewed, extended, refinanced, refunded or repurchased,
(ii) such Indebtedness is scheduled to mature no earlier
than the Indebtedness being renewed, extended, refinanced,
refunded or repurchased, and (iii) such Indebtedness has
an Average Life at the time such Indebtedness is incurred that
is equal to or greater than the Average Life of the
Indebtedness being renewed, extended, refinanced, refunded or
repurchased; provided
, further ,
that such Indebtedness (to the extent that such Indebtedness
constitutes Permitted Company Refinancing Indebtedness) is in
an aggregate principal amount (or, if such Indebtedness is
issued at a price less than the principal amount thereof, the
aggregate amount of gross proceeds therefrom is) not in excess
of the aggregate principal amount then outstanding of the
Indebtedness being renewed, extended, refinanced, refunded or
repurchased (or if the Indebtedness being renewed, extended,
refinanced, refunded or repurchased was issued at a price less
than the principal amount thereof, then not in excess of the
amount of liability in respect thereof determined in
accordance with GAAP).
“Permitted
Financial Investments” means the following kinds of
instruments if, in the case of instruments referred to in
clauses (i)-(iv) below, on the date of purchase or other
acquisition of any such instrument by the Company or any
Subsidiary, the remaining term to maturity is not more than
one year; (i) readily marketable obligations issued
or unconditionally guaranteed as to principal of
and interest thereon by the United States of
America or by any agency or authority controlled or supervised
by and acting as an instrumentality of the United States of
America; (ii) repurchase obligations for instruments of
the type described in clause (i) for which delivery of
the instrument is made against payment; (iii) obligations
(including, but not limited to, demand or time deposits,
bankers’ acceptances and certificates of deposit) issued
by a depositary institution or trust company incorporated or
doing business under the laws of the United States of America,
any state thereof or the District of Columbia or a branch or
subsidiary of any such depositary institution or trust company
operating outside the United States, provided
, that such depositary institution or trust company has, at
the time of the Company’s or such Subsidiary’s
investment therein or contractual commitment providing for
such investment, capital surplus or undivided profits (as of
the date of such institution’s most recently published
financial statements) in excess of $500,000,000;
(iv) commercial paper issued by any corporation, if such
commercial paper has, at the time of the Company’s or
any Subsidiary’s investment therein or contractual
commitment providing for such investment, credit ratings of
A-1 (or higher) by S&P and P-1 (or higher) by
Moody’s; and (v) money market mutual or similar
funds having assets in excess of $500,000,000.
“Permitted
Liens” means (i) Liens existing on the Issue Date;
(ii) Liens securing Indebtedness under Credit Facilities;
(iii) Liens now or hereafter securing any Interest Rate
Hedging Agreements so long as the related Indebtedness
(a) constitutes the Existing Notes or the Securities (or
any Permitted Company Refinancing Indebtedness in respect
thereof) or (b) is, or is permitted to be under this
Indenture, secured by a Lien on the same property securing
such interest rate hedging obligations; (iv) Liens
securing Permitted Company Refinancing Indebtedness or
Permitted Subsidiary Refinancing Indebtedness; provided
, that such Liens extend to or cover only the property or
assets currently securing the Indebtedness being refinanced
and that the Indebtedness being refinanced was not incurred
under the Credit Facilities; (v) Liens for taxes,
assessments and governmental charges not yet delinquent or
being contested in good faith and for which adequate reserves
have been established to the extent required by GAAP;
(vi) mechanics’, worker’s,
materialmen’s, operators’ or similar Liens arising
in the ordinary course of business; (vii) Liens in
connection with worker’s compensation, unemployment
insurance or other social security, old age pension or public
liability obligations; (viii) Liens, deposits or pledges
to secure the performance of bids, tenders, contracts (other
than contracts for the payment of money), leases, public or
statutory obligations, surety, stay, appeal, indemnity,
performance or other similar bonds, or other similar
obligations arising in the ordinary course of business;
(ix) survey exceptions, encumbrances, easements or
reservations of, or rights of others for, rights of way,
zoning or other restrictions as to the use of real properties,
and minor defects in title which, in the case of any of the
foregoing, were not incurred or created to secure the payment
of borrowed money or the deferred purchase price of property
or services, and in the aggregate do not materially adversely
affect the value of such properties or materially impair use
for the purposes of which such properties are held by the
Company or any Subsidiaries; (x) Liens on, or related to,
properties to secure all or part of the costs incurred in the
ordinary course of business of exploration, drilling,
development or operation thereof; (xi) Liens on pipeline
or pipeline facilities which arise out of operation of law;
(xii) judgment and attachment Liens not giving rise to an
Event of Default or Liens created by or existing from any
litigation or legal proceeding that are currently being
contested in good faith by appropriate proceedings and for
which adequate reserves have been made;
(xiii) (a) Liens upon any property of any Person
existing at the time of acquisition thereof by the Company or
a Subsidiary, (b) Liens upon any property of a Person
existing at the time such Person is merged or consolidated
with the Company or any Subsidiary or existing at the time of
the sale or transfer of any such property of such Person to
the Company or any Subsidiary, or (c) Liens upon any
property of a Person existing at the time such Person becomes
a Subsidiary; provided
, that in each case such Lien has not been created in
contemplation of such sale, merger, consolidation, transfer or
acquisition, and provided
, further ,
that in each such case no such Lien shall extend to or cover
any property of the Company or any Subsidiary other than the
property being acquired and improvements thereon;
(xiv) Liens on deposits to secure public or statutory
obligations or in lieu of surety or appeal bonds entered into
in the ordinary course of business; (xv) Liens in favor
of collecting or payor banks having a right of setoff,
revocation, refund or chargeback with respect to money or
instruments of the Company or any Subsidiary on deposit with
or in possession of such bank; (xvi) purchase money
security interests granted in connection with the acquisition
of assets in the ordinary course of business and consistent
with past practices, provided
, that (A) such Liens attach only to the property so
acquired with the purchase money indebtedness secured thereby
and (B) such Liens secure only Indebtedness that is not
in excess of 100% of the purchase price of such assets;
(xvii) Liens reserved in oil and gas mineral leases for
bonus or rental payments and for compliance with the terms of
such leases; (xviii) Liens arising under partnership
agreements, oil and gas leases, farm-out agreements, division
orders, contracts for the sale, purchase, exchange,
transportation or processing (but not refining) of oil, gas or
other hydrocarbons, unitization and pooling declarations and
agreements, development agreements, operating agreements, area
of mutual interest agreements, and other similar agreements
which are customary in the Oil and Gas
Business; (xix) Liens securing obligations of
the Company or any of its Subsidiaries under Currency Hedge
Obligations or Oil and Gas Hedging Contracts; (xx) Liens
to secure Dollar-Denominated Production Payments and
Volumetric Production Payments; and (xxi) Liens securing
other Indebtedness in an aggregate principal amount which,
together with all other Indebtedness outstanding on the date
of such incurrence and secured by Liens pursuant to this
clause (xxi), does not exceed 15% of Adjusted Consolidated
Tangible Net Assets.
“Permitted
Subsidiary Refinancing Indebtedness” means Indebtedness
of any Subsidiary, the net proceeds of which are used to
renew, extend, refinance, refund or repurchase outstanding
Indebtedness of such Subsidiary, provided
that (i) if the Indebtedness (including the Guarantees)
being renewed, extended, refinanced, refunded or repurchased
is pari passu with or subordinated in right of payment to the
Guarantees, then such Indebtedness is pari passu with or
subordinated in right of payment to, as the case may be, the
Guarantees at least to the same extent as the Indebtedness
being renewed, extended, refinanced, refunded or repurchased,
(ii) such Indebtedness is scheduled to mature no earlier
than the Indebtedness being renewed, extended, refinanced,
refunded or repurchased, and (iii) such Indebtedness has
an Average Life at the time such Indebtedness is incurred that
is equal to or greater than the Average Life of the
Indebtedness being renewed, extended, refinanced, refunded or
repurchased; provided
, further ,
that such Indebtedness (to the extent that such Indebtedness
constitutes Permitted Subsidiary Refinancing Indebtedness) is
in an aggregate principal amount (or, if such Indebtedness is
issued at a price less than the principal amount thereof, the
aggregate amount of gross proceeds therefrom is) not in excess
of the aggregate principal amount then outstanding of the
Indebtedness being renewed, extended, refinanced, refunded or
repurchased (or if the Indebtedness being renewed, extended,
refinanced, refunded or repurchased was issued at a price less
than the principal amount thereof, then not in excess of the
amount of liability in respect thereof determined in
accordance with GAAP).
“Person”
means any individual, corporation, partnership, joint venture,
trust, estate, unincorporated organization or government or
any agency or political subdivision thereof.
“Preferred
Stock,” as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes
(however designated), which is preferred as to the payment of
dividends, or upon any voluntary or involuntary liquidation or
dissolution of such corporation, over shares of Capital Stock
of any other class of such corporation.
“Production
Payments” means, collectively, Dollar-Denominated
Production Payments and Volumetric Production
Payments.
“pro
forma” means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a
calculation in accordance with Article Eleven of Regulation
S-X under the Securities Act.
“S&P”
refers to Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc., or any successor
to the rating agency business thereof.
“Sale/Leaseback
Transaction” means with respect to the Company or any of
its Subsidiaries, any arrangement with any Person providing
for the leasing by the Company or any of its Subsidiaries of
any principal property, acquired or placed into service more
than 180 days prior to such arrangement, whereby such property
has been or is to be sold or transferred by the Company or any
of its Subsidiaries to such Person.
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
“Senior
Indebtedness” means any Indebtedness of the Company or a
Subsidiary Guarantor (whether outstanding on the Issue Date or
thereafter incurred), unless such Indebtedness is
contractually subordinate or junior in right of payment of
principal, premium and interest to the Securities or the
Guarantees, respectively.
“Significant
Subsidiary” means any subsidiary that would constitute a
“significant subsidiary” within the meaning of
Article 1 of Regulation S-X promulgated under the
Exchange Act.
“Subsidiary”
means any subsidiary of the Company. A
“subsidiary” of any Person means (i) a
corporation a majority of whose Voting Stock is at the time,
directly or indirectly, owned by such Person, by one or more
subsidiaries of such Person or by such Person and one or more
subsidiaries of such Person, (ii) a partnership in which
such Person or a subsidiary of such Person is, at the date of
determination, a general or limited partner of such
partnership, but only if such Person or its subsidiary is
entitled to receive more than 50 percent of the assets of such
partnership upon its dissolution, or (iii) any other
Person (other than a corporation or partnership) in which such
Person, directly or indirectly, at the date of determination
thereof, has (x) at least a majority ownership interest
or (y) the power to elect or direct the election of a
majority of the directors or other governing body of such
Person.
“Subsidiary
Guarantor” means (i) each of the Subsidiaries that
executes this Indenture as a subsidiary guarantor on the Issue
Date; and (ii) each of the other Subsidiaries that
becomes a guarantor of the Securities in compliance with the
provisions of Article Ten of this Indenture.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the
date of this Indenture, except as provided in Section
9.03.
“Trust
Officer” means any officer or assistant officer within
the corporate trust department of the Trustee assigned by the
Trustee to administer its corporate trust matters and who
shall have direct responsibility for the administration of
this Indenture.
“Trustee”
means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this
Indenture and thereafter means the successor.
“U.S.
Government Securities” means securities that are
(i) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged
or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America, which, in either case under clauses
(i) or (ii) are not callable or redeemable at the
option of the issuer thereof.
“U.S.
Legal Tender” means such coin or currency of the United
States as at the time of payment shall be legal tender for the
payment of public and private debts.
“Volumetric
Production Payments” mean production payment obligations
recorded as deferred revenue in accordance with GAAP, together
with all undertakings and obligations in connection
therewith.
“Voting
Stock” means, with respect to any Person, securities of
any class or classes of Capital Stock in such Person entitling
the holders thereof (whether at all times or only so long as
no senior class of stock has voting power by reason of
contingency) to vote in the election of members of the Board
of Directors or other governing body of such
Person.
SECTION
1.02.
Other Definitions.
Other
terms used in this Indenture are defined in the Appendix or in
the Section indicated below:
|
Term
|
Defined in Section
|
|
“Appendix”
|
2.01
|
|
“Bankruptcy
Law”
|
6.01
|
|
“Covenant
Defeasance”
|
8.03
|
|
“Custodian”
|
6.01
|
|
“Event
of
Default”
|
6.01
|
|
“Excess
Proceeds”
|
4.10
|
|
“Funding
Guarantor”
|
10.06
|
|
“incur”
|
4.09
|
|
“Legal
Defeasance”
|
8.02
|
|
“Legal
Holiday”
|
11.07
|
|
“Net
Proceeds
Offer”
|
4.10
|
|
“Net
Proceeds Offer Triggering
Event”
|
4.10
|
|
“Net
Proceeds Payment
Date”
|
4.10
|
|
“Offer
Notice”
|
4.10
|
|
“Paying
Agent”
|
2.03
|
|
“Payment
Default”
|
6.01
|
|
“Registrar”
|
2.03
|
SECTION
1.03.
Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a part
of this Indenture. The following TIA terms, if used in this
Indenture, have the following meanings:
“Commission”
means the SEC.
“indenture
securities” means the Securities and the
Guarantees.
“indenture
security holder” means a Holder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means
the Trustee.
“obligor”
on the indenture securities means the Company, the Subsidiary
Guarantors and any other obligor on the Securities or the
Guarantees.
All
other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by
SEC rule have the meanings assigned to them
therein.
SECTION
1.04.
Rules of Construction.
Unless
the context otherwise requires:
(1)
a
term has the meaning assigned to it;
(2)
an
accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3)
“or”
is not exclusive;
(4)
words
in the singular include the plural, and words in the plural include
the singular;
(5)
any
gender used in this Indenture shall be deemed to include the
neuter, masculine or feminine genders;
(6)
provisions
apply to successive events and transactions; and
(7)
“herein,”
“hereof” and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other Subdivision.
ARTICLE
TWO
THE
SECURITIES
SECTION
2.01.
Form and Dating. Provisions relating to the
Securities are set forth in the Appendix attached hereto (the
“Appendix”) which is hereby incorporated in and
expressly made part of this Indenture. The Securities and the
Trustee’s certificate of authentication shall be
substantially in the form of Exhibit 1 to the Appendix which is
hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to
which the Company is subject, if any, or usage ( provided that
any such notation, legend or endorsement is in a form acceptable to
the Company and to the Trustee). Each Security shall be
dated the date of its authentication. The terms of the
Securities set forth in the Appendix and Exhibit 1 are
part of the terms of this Indenture.
SECTION
2.02.
Execution and Authentication. Two Officers shall
sign the Securities for the Company by manual or facsimile
signature.
If
an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the
Security, the Security shall be valid
nevertheless.
A
Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication
on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this
Indenture.
On
the Issue Date, the Trustee shall authenticate and deliver
$800,000,000 of Securities and, at any time and from time to
time thereafter, the Trustee shall authenticate and deliver
Securities for original issue in an aggregate principal amount
specified in such order, in each case upon a written order of
the Company signed by two Officers or by an Officer and either
an Assistant Treasurer or an Assistant Secretary of the
Company. Such order shall specify the amount of the
Securities to be authenticated and the date on which the
original issue of Securities is to be
authenticated.
The
Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the
Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An
authenticating agent has the same rights with respect to the
Company as any Registrar, Paying Agent or agent for service of
notices and demands.
SECTION
2.03.
Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the
“Registrar”) and an office or agency where Securities
may be presented for payment (the “Paying
Agent”). The Registrar shall keep a register of
the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more
additional paying agents. The term “Paying
Agent” includes any additional paying agent.
The
Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to
this Indenture, which shall incorporate the terms of the
TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of
any such agent and shall furnish the Trustee with an executed
counterpart of any such agency agreement. If the
Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07. The
Company or any wholly owned Subsidiary incorporated or
organized within the United States of America may act as
Paying Agent, Registrar, co-registrar or transfer
agent.
The
Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities.
SECTION
2.04.
Paying Agent to Hold Money in Trust. Prior to
11:00 a.m., New York time, on each due date of principal and
interest on any Security, the Company shall deposit with the Paying
Agent a sum of money sufficient to make such payments when so
becoming due. The Company shall require each Paying
Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the Trustee
all money held by the Paying Agent for the payment of principal of
or interest on the Securities and shall notify the Trustee of any
default by the Company in making any such payment. If
the Company or a Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by the Paying
Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to
the Trustee.
SECTION
2.05.
Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list
available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the
names and addresses of Holders.
SECTION
2.06.
Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the
surrender of a Security for registration of
transfer. When a Security is presented to the Registrar
or a co-registrar with a request to register a transfer, the
Registrar shall register the transfer as requested if the
requirements of this Indenture and Section 8-401(a) of the
Uniform Commercial Code are met. When Securities are
presented to the Registrar or a co-registrar with a request to
exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested
if the same requirements are met.
SECTION
2.07.
Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security
claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the requirements of Section 8-405 of
the Uniform Commercial Code are met and the Holder satisfies any
other reasonable requirements of the Trustee. Such
Holder shall furnish an indemnity bond sufficient in the judgment
of the Company and the Trustee to protect the Company, the Trustee,
the Paying Agent, the Registrar and any co-registrar from any loss
which any of them may suffer if a Security is
replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every
replacement Security is an additional obligation of the
Company.
SECTION
2.08.
Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except
for those canceled by it, those delivered to it for cancelation and
those described in this Section as not outstanding. A
Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security.
If
a Security is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee and the Company
receive proof satisfactory to them that the replaced Security
is held by a bona fide purchaser.
If
the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or the Maturity Date
money sufficient to pay all principal and interest payable on
that date with respect to the Securities (or portions thereof)
to be redeemed or maturing, as the case may be, then on and
after that date such Securities (or portions thereof) cease to
be outstanding and interest on them ceases to
accrue.
SECTION
2.09.
Temporary Securities. Until definitive
Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive
Securities and deliver them in exchange for temporary
Securities.
SECTION
2.10.
Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel and
dispose of (subject to the record retention requirements of the
Exchange Act) all Securities surrendered for registration of
transfer, exchange, payment or cancelation in its customary manner
and upon request shall deliver a certificate of such disposal to
the Company unless the Company directs the Trustee to deliver
canceled Securities to the Company. Any Securities
purchased by the Company may, to the extent permitted by law, be
reissued or resold or may, at its option, be surrendered to the
Trustee for cancelation. The Company may not issue new Securities
to replace Securities it has delivered to the Trustee for
cancelation.
SECTION
2.11.
Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay
defaulted interest (plus interest on such defaulted interest to the
extent lawful) at the rate borne by the Securities in any lawful
manner. The Company may pay the defaulted interest to
the persons who are Holders on a subsequent special record
date. The Company shall fix or cause to be fixed any
such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail to each Holder
a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION
2.12.
CUSIP Numbers. The Company in issuing the
Securities may use “CUSIP” numbers (if then generally
in use) and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders;
provided ,
however , that
any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company shall
notify the Trustee of any change in the CUSIP numbers.
SECTION
2.13.
Issuance of Additional Securities. The Company
shall be entitled to issue Additional Securities under this
Indenture which shall have identical terms as the Securities issued
on the Issue Date, other than with respect to the date of issuance
and issue price. The Securities issued on the Issue Date
and any Additional Securities shall be treated as a single class
for all purposes under this Indenture.
With
respect to any Additional Securities, the Company shall set
forth in a resolution of the Board of Directors and an
Officers’ Certificate, a copy of each which shall be
delivered to the Trustee, the following
information:
(1)
the
aggregate principal amount of such Additional Securities to be
authenticated and delivered pursuant to this Indenture;
and
(2)
the
issue price, the issue date and the CUSIP number of such Additional
Securities; provided ,
however , that
no Additional Securities may be issued at a price that would cause
such Additional Securities to have “original issue
discount” within the meaning of Section 1273 of the
Code.
Additional
Securities may be issued with the same CUSIP number as the
Securities issued on the Issue Date if, and only if, the
Company shall have provided the Trustee with an Opinion of
Counsel, to the effect that such Additional Securities will be
fungible with the Securities issued on the Issue Date for all
United States federal income tax purposes.
ARTICLE
THREE
REDEMPTION
SECTION
3.01.
Notice to Trustee. If the Company elects to
redeem Securities pursuant to the make-whole redemption provisions
of Section 3.07 and Paragraph 5 of the Securities, it shall furnish
to the Trustee and the Registrar, at least 45 days but not more
than 60 days before the redemption date (unless the Trustee
consents to a shorter period in writing), an Officers’
Certificate setting forth the redemption date, the principal amount
of Securities to be redeemed and the redemption price, including
the detail of the calculation of the Make-Whole Price.
SECTION
3.02.
Selection of Securities to Be Redeemed. If less
than all of the Securities are to be redeemed at any time, the
Trustee shall select the Securities to be redeemed pro rata, by lot
or, if the Securities are listed on any securities exchange, by any
other method that the Trustee considers fair and appropriate and
that complies with the requirements of such exchange; provided ,
however , that
no Securities with a principal amount of $1,000 or less will be
redeemed in part. The Trustee shall make the selection
from outstanding Securities not previously called for redemption
not less than 30 nor more than 60 days prior to the redemption
date. Securities and portions of them it selects shall be in
amounts of $1,000 or whole multiples of
$1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of Securities
selected for redemption.
SECTION
3.03.
Notice of Redemption. (a) At least 30
days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail to
each Holder of Securities to be redeemed at such Holder’s
registered address.
The
notice shall identify the Securities to be redeemed and shall
state:
(1)
the
redemption date;
(2)
the
redemption price;
(3)
the
aggregate principal amount of Securities being
redeemed;
(4)
the
name and address of the Paying Agent;
(5)
that
Securities called for redemption must be surrendered to the Paying
Agent at the address specified in such notice to collect the
redemption price;
(6)
that,
unless the Company defaults in the payment of the redemption price
or accrued interest, interest on Securities called for redemption
ceases to accrue on and after the redemption date and the only
remaining right of the Holders is to receive payment of the
redemption prices in respect of the Securities upon surrender to
the Paying Agent of the Securities;
(7)
if
any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after
the redemption date, upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed
portion will be issued in the name of the Holder thereof upon
cancelation of the Security or Securities being redeemed;
and
(8)
the
CUSIP number of the Securities.
(b)
At
the Company’s request, the Trustee shall give the notice of
redemption required in Section 3.03(a) in the Company’s name
and at the Company’s expense; provided ,
however , that
the Company shall deliver to the Trustee, at least 15 days prior to
the date on which the Company requests that the Trustee give such
notice (unless the Trustee consents to a shorter notice period in
writing), an Officers’ Certificate requesting that the
Trustee give such notice and setting forth the information to be
stated in such notice as provided in Section 3.03(a).
SECTION
3.04.
Effect of Notice of Redemption. Once notice of
redemption is mailed in accordance with Section 3.03, Securities
called for redemption become due and payable on the redemption date
at the redemption price. Upon surrender to the Paying
Agent, such Securities shall be paid at the redemption price, plus
accrued and unpaid interest to the redemption date (subject to the
right of Holders of record on the relevant record date to receive
interest due on the related interest payment
date). Failure to give notice or any defect in the
notice to any Holder shall not affect the validity of the notice to
any other Holder.
SECTION
3.05.
Deposit of Redemption Price. Prior to
11:00 a.m., New York time, on the redemption date, the Company
shall deposit with the Paying Agent (or if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust)
funds available on the redemption date sufficient to pay the
redemption price of, and accrued and unpaid interest on, the
Securities to be redeemed on that date. The Paying Agent
shall promptly return to the Company any money so deposited which
is not required for that purpose upon the written request of the
Company, except with respect to monies owed as obligations to the
Trustee pursuant to Article Seven.
If
any Security called for redemption shall not be so paid upon
redemption because of the failure of the Company to comply
with the preceding paragraph, interest will continue to be
payable on the unpaid principal and premium, if any, including
from the redemption date until such principal and premium, if
any, is paid, and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate
provided in the Securities and in Section 4.01
hereof.
SECTION
3.06.
Securities Redeemed in Part. Upon surrender of a
Security that is to be redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder, at the expense
of the Company, a new Security equal in aggregate amount to the
unredeemed portion of the Security surrendered.
SECTION
3.07.
Optional Redemption at Make-Whole Price. At any
time prior to the Maturity Date, the Company may, at its option,
redeem all or any portion of the Securities at the Make-Whole Price
plus accrued and unpaid interest on the Securities so redeemed to
the date of redemption.
Any
redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06
hereof.
ARTICLE
FOUR
COVENANTS
SECTION
4.01.
Payment of Securities. The Company shall pay the
principal of, premium, if any, and interest on, the Securities on
the dates and in the manner provided in the Securities and this
Indenture. Principal, premium and interest shall be
considered paid on the date due if the Trustee or Paying Agent
holds on that date money deposited by the Company designated for
and sufficient to pay all principal, premium and interest then
due.
The
Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue
principal, and premium, if any, at the rate borne by the
Securities to the extent lawful; and it shall pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without
regard to any applicable grace period) at the same rate to the
extent lawful.
SECTION
4.02.
SEC Reports. (a) The Company, within
15 days after it files the same with the SEC, shall deliver to
Holders copies of the annual reports and the information, documents
and other reports (or copies of any such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) that
the Company is required to file with the SEC pursuant to Section 13
or 15(d) of the Exchange Act. Notwithstanding that the
Company may not be required to remain subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall file with the SEC and provide Holders with such
annual reports and such information, documents and other reports
specified in Sections 13 and 15(d) of the Exchange
Act. The Company and each Subsidiary Guarantor shall
also comply with the provisions of TIA Section 314(a).
(b)
The
Company may request the Trustee on behalf of the Company at the
Company’s expense to mail the foregoing to
Holders. In such case, the Company shall provide the
Trustee with a sufficient number of copies of all reports and other
documents and information that the Trustee may be required to
deliver to Holders under this Section.
(c)
Delivery
of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including the Company’s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).
SECTION
4.03.
Compliance Certificates. (a) The
Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company, an Officers’ Certificate,
stating that a review of the activities of the Company and the
Subsidiaries during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to determining
whether each of the Company and the Subsidiary Guarantors has kept,
observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing
such certificate, that, to the best of such Officers’
knowledge, each of the Company and the Subsidiary Guarantors has
kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of
which such Officers may have knowledge and what action the Company
is taking or proposes to take with respect thereto) and that to the
best of such Officers’ knowledge, after reasonable inquiry,
no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, or
interest, if any, on the Securities are prohibited or, if such
event has occurred, a description of the event and what action the
Company and the Subsidiary Guarantors are taking or propose to take
with respect thereto. Such Officers’ Certificate
shall comply with TIA Section 314(a)(4). The Company
hereby represents that, as of the Issue Date, its fiscal year ends
December 31, and hereby covenants that it shall notify the Trustee
at least 30 days in advance of any change in its fiscal
year.
(b)
So
long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.02 shall be
accompanied by a written statement of the Company’s
independent public accountants (which shall be a firm of
established national reputation) that in making the examination
necessary for certification of such financial statements nothing
has come to their attention that would lead them to believe that
the Company has violated any provisions of Section 4.07 of this
Indenture (to the extent such provision relates to accounting
matters) or, if any such violation has occurred, specifying the
nature and period of existence thereof. Where such
financial statements are not accompanied by such a written
statement, the Company shall furnish the Trustee with an
Officers’ Certificate stating that any such written statement
would be contrary to the then current recommendations of the
American Institute of Certified Public Accountants.
(c)
The
Company and the Subsidiary Guarantors will, so long as any of the
Securities are outstanding, deliver to the Trustee forthwith upon
any Officer becoming aware of any Default or Event of Default or
default in the performance of any covenant, agreement or condition
contained in this Indenture, an Officers’ Certificate
specifying such Default or Event of Default and what action the
Company or any Subsidiary Guarantor proposes to take with respect
thereto.
SECTION
4.04.
Maintenance of Office or Agency. The Company
will maintain in the Borough of Manhattan, The City of New York, an
office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be
served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company 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 address of the Trustee set forth in Section 11.02 or
at the corporate trust office of the Trustee.
Subject
to Section 2.03, the Company may also from time to time
designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided
, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York, for
such purposes. The Company will 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.
SECTION
4.05.
Corporate Existence. Except as permitted by
Article Five hereof, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other
existence of each Subsidiary and all rights (charter and statutory)
and franchises of the Company and the Subsidiaries; provided ,
that the Company shall not be required to preserve the corporate
existence of any Subsidiary, or any such right or franchise, if the
Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to
the Holders.
SECTION
4.06.
Waiver of Stay, Extension or Usury Laws. The
Company and each Subsidiary Guarantor covenants (to the extent that
each may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension, or usury law or other law which
would prohibit or forgive the Company or any Subsidiary Guarantor
from paying all or any portion of the principal of, premium, if
any, or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) each of the Company and the
Subsidiary Guarantors hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution
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