UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 30, 2015
CONSOL Energy Inc.
(Exact name of registrant as specified in its charter)
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| Delaware |
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001-14901 |
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51-0337383 |
| (State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
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(IRS Employer
Identification No.) |
CNX Center
1000 CONSOL Energy Drive
Canonsburg, Pennsylvania 15317
(Address of principal executive offices)
(Zip code)
Registrant’s telephone number, including area code: (724) 485-4000
Not applicable
(Former
name or former address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01. |
Entry into a Material Definitive Agreement. |
Indenture
The Notes and Guarantees were issued pursuant to an indenture (the “Indenture”), dated March 30, 2015, among the Company, the
Guarantors and Wells Fargo Bank, National Association, as trustee (the “Trustee”). The Notes accrue interest from March 30, 2015 at a rate of 8.000% per year. Interest on the Notes is payable semi-annually in arrears on
April 1 and October 1 of each year, beginning October 1, 2014. The Notes mature on April 1, 2023.
The Notes rank
equally in right of payment with all of the Company’s existing and future senior indebtedness and senior to any subordinated indebtedness that the Company may incur. The Guarantees rank equally in right of payment to all of the Guarantors’
existing and future senior indebtedness
On or after April 1, 2018, the Company may redeem all or part of the Notes at the redemption
prices set forth below, plus accrued and unpaid interest, if any, to, but not including, the redemption date (subject to the rights of holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date),
beginning on April 1 of the years indicated:
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| Year |
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Percentage |
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| 2018 |
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106.000 |
% |
| 2019 |
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104.000 |
% |
| 2020 |
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|
102.000 |
% |
| 2021 and thereafter |
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|
100.000 |
% |
Prior to April 1, 2018, the Company may on one or more occasions redeem up to 35% of the principal amount
of the Notes with an amount of cash not greater than the amount of the net cash proceeds from one or more equity offerings at a redemption price equal to 108.000% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest,
if any, to, but not including, the date of redemption, as long as at least 65% of the aggregate principal amount of the Notes originally issued on the issue date (excluding notes held by the Company and its subsidiaries) remains outstanding after
each such redemption and the redemption occurs within than 180 days after the date of the closing of the equity offering.
At any time or
from time to time prior to April 1, 2018, the Company may also redeem all or a part of the Notes, at a redemption price equal to 100% of the principal amount thereof plus the Applicable Premium, as defined in the Indenture, plus accrued and
unpaid interest, if any, to, but not including, the redemption date (subject to the rights of holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date).
The Indenture contains covenants that will limit the ability of the Company and the Guarantors to
(i) incur, assume or guarantee additional indebtedness or issue preferred stock; (ii) create liens to secure indebtedness; (iii) make distributions on, purchase or redeem the Company’s common stock or purchase or redeem
subordinated indebtedness; (iv) make investments; (v) restrict dividends, loans or other asset transfers from the Company’s restricted subsidiaries; (vi) consolidate with or merge with or into, or sell substantially all of its
properties to, another person; (vii) sell or otherwise dispose of assets, including equity interests in subsidiaries; (viii) enter into transactions with affiliates; and (ix) create unrestricted subsidiaries. These covenants are
subject to important exceptions and qualifications. If the Notes achieve an investment grade rating from either of Standard & Poor’s Ratings Services or Moody’s Investors Service, Inc. and no default under the Indenture exists,
many of the foregoing covenants will terminate.
The Indenture also contains customary events of default, including (i) default for
30 days in the payment when due of interest on the Notes; (ii) default in payment when due of principal of or premium, if any, on the Notes at maturity, upon redemption or otherwise; (iii) covenant defaults, (iv) cross-defaults to
certain indebtedness and (v) certain events of bankruptcy or insolvency with respect to the Company or any of the Guarantors. If an event of default occurs and is continuing, the Trustee or the holders of at least 25% in aggregate principal
amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. If an event of default arises from certain events of bankruptcy or insolvency, with respect to the Company, any restricted subsidiary of the Company
that is a significant subsidiary or any group of restricted subsidiaries of the Company that, taken together, would constitute a significant subsidiary, all outstanding Notes will become due and payable immediately without further action or notice.
The Indenture also permits us to spin off, by way of a stock dividend, a majority of the voting securities of a subsidiary that holds all
or substantially all of our oil and natural gas properties or our coal reserves and related assets, subject to compliance with certain conditions, including compliance with a leverage test and provided that no default or event of default has
occurred or would result from such dividend. If we elect to distribute to our shareholders the voting stock of our subsidiary that holds our oil and natural gas properties (as opposed to our coal properties), then that subsidiary will assume all of
the obligations of the Company under the Notes and the Indenture, and we will have no further liability with respect to the Notes or the Guarantees.
If the Company experiences certain kinds of changes of control, holders of the Notes will be entitled to require the Company to repurchase all
or any part (equal to $2,000 or an integral multiple of $1,000 in excess of $2,000) of that holder’s Notes pursuant to an offer on the terms set forth in the Indenture. The Company will offer to make a cash payment (a “Change of Control
Payment”) equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of holders of the Notes on the
relevant record date to receive interest due on the relevant interest payment date.
The foregoing description of the Indenture does not
purport to be complete and is qualified in its entirety by reference to the Indenture, a copy of which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Registration Rights Agreements
On
March 30, 2015, in connection with the closing of this offering of the Notes, the Company and the Guarantors entered into a registration rights agreement with the Representative. Under the Registration Rights Agreement, the Company and the
Guarantors have agreed to file and use commercially reasonable efforts to cause to become effective a registration statement with respect to an offer to exchange the Notes for substantially identical notes that are registered under the Securities
Act so as to permit the exchange offer to be consummated no later than the 400th day following the issuance of the Notes. Under specified circumstances, the Company and the Guarantors have also agreed to use commercially reasonable efforts to cause
to become effective a shelf registration statement relating to resales of the Notes. The Company is required to pay additional interest (initially 1.0%, which amount will increase annually) if it fails to comply with the obligations to consummate
the exchange offer or to cause a shelf registration statement relating to resales of the Notes to become effective within the time periods specified in the Registration Rights Agreement.
The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference
to the Registration Rights Agreement, a copy of which is filed as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information included in Item 1.01 of this Current Report on Form 8-K under the caption “Indenture” is incorporated by
reference into this Item 2.03 of this Current Report on Form 8-K.
| Item 7.01. |
Regulation FD Disclosure. |
On March 30, 2015, the Company issued a press release
announcing the closing of its private placement of $500 million of its 8.000% senior notes due 2023. A copy of the press release is furnished herewith as Exhibit 99.1 and is incorporated herein by reference.
The information included in this Item 7.01 and Exhibit 99.1 attached hereto is being furnished and shall not be deemed “filed”
for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section. The information included in this Item 7.01 and Exhibit 99.1 attached hereto shall not be
incorporated by reference into any registration statement or other document pursuant to the Securities Act of 1933, as amended.
| Item 9.01. |
Financial Statements and Exhibits. |
(d) Exhibits.
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|
Exhibit
Number |
|
Description of the Exhibit |
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| 4.1 |
|
Indenture, dated as of March 30, 2015, among CONSOL Energy Inc., the subsidiary guarantors party thereto and Wells Fargo Bank, National Association, as Trustee. |
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| 4.2 |
|
Registration Rights Agreement, dated as of March 30, 2015, among CONSOL Energy Inc., the subsidiary guarantors party thereto and Goldman, Sachs & Co., as representative of the several initial purchasers named therein. |
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| 99.1 |
|
Press Release, dated as of March 30, 2015, announcing the closing of the notes offering. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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CONSOL ENERGY INC. |
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By: |
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/s/ Stephen W. Johnson |
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Stephen W. Johnson |
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Executive Vice President and Chief Legal and Corporate Affairs Officer |
Dated: March 30, 2015
Exhibit Index
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Exhibit
Number |
|
Description of the Exhibit |
|
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| 4.1 |
|
Indenture, dated as of March 30, 2015, among CONSOL Energy Inc., the subsidiary guarantors party thereto and Wells Fargo Bank, National Association, as Trustee. |
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| 4.2 |
|
Registration Rights Agreement, dated as of March 30, 2015, among CONSOL Energy Inc., the subsidiary guarantors party thereto and Goldman, Sachs & Co., as representative of the several initial purchasers named therein. |
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| 99.1 |
|
Press Release, dated as of March 30, 2015, announcing the closing of the notes offering. |
Exhibit 4.1
Execution Version
CONSOL ENERGY
INC.,
THE SUBSIDIARY GUARANTORS PARTY HERETO
AND
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
AS TRUSTEE
INDENTURE
Dated as of March 30, 2015
8.000% Senior
Notes due 2023
Table of Contents
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Page |
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| ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
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1 |
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| SECTION 1.1. |
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Definitions |
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1 |
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| SECTION 1.2. |
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Other Definitions |
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41 |
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| SECTION 1.3. |
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Incorporation by Reference of Trust Indenture Act |
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43 |
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| SECTION 1.4. |
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Rules of Construction |
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44 |
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| ARTICLE II THE SECURITIES |
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44 |
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| SECTION 2.1. |
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Form, Dating and Terms |
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44 |
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| SECTION 2.2. |
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Execution and Authentication |
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52 |
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| SECTION 2.3. |
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Registrar and Paying Agent |
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54 |
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| SECTION 2.4. |
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Paying Agent to Hold Money in Trust |
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54 |
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| SECTION 2.5. |
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Securityholder Lists |
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55 |
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| SECTION 2.6. |
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Transfer and Exchange |
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55 |
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| SECTION 2.7. |
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[Reserved] |
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58 |
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| SECTION 2.8. |
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Form of Certificate to be Delivered in Connection with Transfers to Institutional Accredited Investors |
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59 |
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| SECTION 2.9. |
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Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S |
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60 |
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| SECTION 2.10. |
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Mutilated, Destroyed, Lost or Stolen Securities |
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62 |
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| SECTION 2.11. |
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Outstanding Securities |
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63 |
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| SECTION 2.12. |
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Temporary Securities |
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63 |
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| SECTION 2.13. |
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Cancellation |
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64 |
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| SECTION 2.14. |
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Payment of Interest; Defaulted Interest |
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64 |
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| SECTION 2.15. |
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Computation of Interest |
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65 |
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| SECTION 2.16. |
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CUSIP, Common Code and ISIN Numbers |
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65 |
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| ARTICLE III COVENANTS |
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66 |
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| SECTION 3.1. |
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Payment of Securities |
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66 |
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| SECTION 3.2. |
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Limitation on Indebtedness and Preferred Stock |
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66 |
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| SECTION 3.3. |
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Limitation on Restricted Payments |
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69 |
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| SECTION 3.4. |
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Limitation on Restrictions on Distributions from Restricted Subsidiaries |
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73 |
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| SECTION 3.5. |
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Limitation on Sales of Assets and Subsidiary Stock |
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75 |
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| SECTION 3.6. |
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Limitation on Liens |
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78 |
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| SECTION 3.7. |
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[Reserved] |
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79 |
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| SECTION 3.8. |
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Limitation on Affiliate Transactions |
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79 |
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| SECTION 3.9. |
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Purchase of Securities Upon a Change of Control |
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81 |
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| SECTION 3.10. |
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Provision of Financial Information |
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84 |
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| SECTION 3.11. |
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Future Subsidiary Guarantors |
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84 |
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| SECTION 3.12. |
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Maintenance of Office or Agency |
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85 |
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| SECTION 3.13. |
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Corporate Existence |
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85 |
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| SECTION 3.14. |
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Payment of Taxes |
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85 |
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i
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| SECTION 3.15. |
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Designation of Unrestricted Subsidiaries |
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86 |
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| SECTION 3.16. |
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Compliance Certificate |
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86 |
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| SECTION 3.17. |
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Further Instruments and Acts |
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87 |
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| SECTION 3.18. |
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[Reserved] |
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87 |
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| SECTION 3.19. |
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Statement by Officers as to Default |
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87 |
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| SECTION 3.20. |
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Covenant Termination |
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87 |
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| ARTICLE IV SUCCESSOR COMPANY |
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87 |
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| SECTION 4.1. |
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Merger and Consolidation |
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87 |
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| ARTICLE V REDEMPTION OF SECURITIES |
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89 |
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| SECTION 5.1. |
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Redemption |
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89 |
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| SECTION 5.2. |
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Applicability of Article |
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89 |
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| SECTION 5.3. |
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Election to Redeem; Notice to Trustee |
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90 |
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| SECTION 5.4. |
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Selection by Trustee of Securities to Be Redeemed |
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90 |
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| SECTION 5.5. |
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Notice of Redemption |
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90 |
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| SECTION 5.6. |
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Deposit of Redemption Price |
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91 |
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| SECTION 5.7. |
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Securities Payable on Redemption Date |
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92 |
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| SECTION 5.8. |
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Securities Redeemed in Part |
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92 |
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| ARTICLE VI DEFAULTS AND REMEDIES |
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92 |
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| SECTION 6.1. |
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Events of Default |
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92 |
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| SECTION 6.2. |
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Acceleration |
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95 |
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| SECTION 6.3. |
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Other Remedies |
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95 |
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| SECTION 6.4. |
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Waiver of Past Defaults |
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95 |
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| SECTION 6.5. |
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Control by Majority |
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95 |
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| SECTION 6.6. |
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Limitation on Suits |
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96 |
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| SECTION 6.7. |
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Rights of Holders to Receive Payment |
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96 |
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| SECTION 6.8. |
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Collection Suit by Trustee |
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96 |
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| SECTION 6.9. |
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Trustee May File Proofs of Claim |
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96 |
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| SECTION 6.10. |
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Priorities |
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97 |
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| SECTION 6.11. |
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Undertaking for Costs |
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97 |
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| ARTICLE VII TRUSTEE |
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98 |
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| SECTION 7.1. |
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Duties of Trustee |
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98 |
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| SECTION 7.2. |
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Rights of Trustee |
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99 |
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| SECTION 7.3. |
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Individual Rights of Trustee |
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101 |
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| SECTION 7.4. |
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Trustee’s Disclaimer |
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101 |
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| SECTION 7.5. |
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Notice of Defaults |
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101 |
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| SECTION 7.6. |
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Reports by Trustee to Holders |
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101 |
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| SECTION 7.7. |
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Compensation and Indemnity |
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101 |
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| SECTION 7.8. |
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Replacement of Trustee |
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102 |
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| SECTION 7.9. |
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Successor Trustee by Merger |
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103 |
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| SECTION 7.10. |
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Eligibility; Disqualification |
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104 |
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| SECTION 7.11. |
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Preferential Collection of Claims Against the Company |
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104 |
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| SECTION 7.12. |
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Trustee’s Application for Instruction from the Company |
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104 |
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ii
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| ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE |
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104 |
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| SECTION 8.1. |
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Discharge of Liability on Securities; Defeasance |
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104 |
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| SECTION 8.2. |
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Conditions to Defeasance |
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106 |
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| SECTION 8.3. |
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Application of Trust Money |
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107 |
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| SECTION 8.4. |
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Repayment to the Company |
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107 |
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| SECTION 8.5. |
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Indemnity for Government Securities |
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107 |
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| SECTION 8.6. |
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Reinstatement |
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108 |
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| ARTICLE IX AMENDMENTS |
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108 |
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| SECTION 9.1. |
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Without Consent of Holders |
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108 |
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| SECTION 9.2. |
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With Consent of Holders |
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109 |
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| SECTION 9.3. |
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Compliance with Trust Indenture Act |
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110 |
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| SECTION 9.4. |
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Revocation and Effect of Consents and Waivers |
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110 |
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| SECTION 9.5. |
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Notation on or Exchange of Securities |
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110 |
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| SECTION 9.6. |
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Trustee to Sign Amendments |
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111 |
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| ARTICLE X GUARANTEE |
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111 |
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| SECTION 10.1. |
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Guarantee |
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111 |
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| SECTION 10.2. |
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Limitation on Liability; Termination, Release and Discharge |
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113 |
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| SECTION 10.3. |
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Right of Contribution |
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114 |
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| SECTION 10.4. |
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No Subrogation |
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114 |
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| ARTICLE XI [RESERVED] |
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114 |
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| ARTICLE XII MISCELLANEOUS |
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114 |
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| SECTION 12.1. |
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Trust Indenture Act Controls |
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114 |
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| SECTION 12.2. |
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Notices |
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115 |
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| SECTION 12.3. |
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Communication by Holders with other Holders |
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116 |
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| SECTION 12.4. |
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Certificate and Opinion as to Conditions Precedent |
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116 |
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| SECTION 12.5. |
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Statements Required in Certificate or Opinion |
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116 |
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| SECTION 12.6. |
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When Securities Disregarded |
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117 |
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| SECTION 12.7. |
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Rules by Trustee, Paying Agent and Registrar |
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117 |
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| SECTION 12.8. |
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Legal Holidays |
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117 |
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| SECTION 12.9. |
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GOVERNING LAW |
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117 |
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| SECTION 12.10. |
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No Personal Liability of Directors, Officers, Employees and Stockholders |
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117 |
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| SECTION 12.11. |
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Successors |
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117 |
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| SECTION 12.12. |
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Multiple Originals |
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117 |
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| SECTION 12.13. |
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Qualification of Indenture |
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118 |
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| SECTION 12.14. |
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Table of Contents; Headings |
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118 |
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| SECTION 12.15. |
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Force Majeure |
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118 |
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| SECTION 12.16. |
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Waiver of Jury Trial |
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118 |
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| SECTION 12.17. |
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Consent to Jurisdiction |
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118 |
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iii
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| SCHEDULE I |
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Subsidiary Guarantors |
| EXHIBIT A |
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Form of the Series A Note |
| EXHIBIT B |
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Form of the Series B Note |
| EXHIBIT C |
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Form of Indenture Supplement to Add Subsidiary Guarantors |
iv
CROSS-REFERENCE TABLE
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| TIA Section |
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Indenture Section |
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| 310(a)(1) |
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7.10 |
| (a)(2) |
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7.10 |
| (a)(3) |
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N.A. |
| (a)(4) |
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N.A. |
| (a)(5) |
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7.10 |
| (b) |
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7.8; 7.10 |
| 311(a) |
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7.11 |
| (b) |
|
7.11 |
| 312(a) |
|
2.5 |
| (b) |
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12.3 |
| (c) |
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12.3 |
| 313(a) |
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7.6 |
| (b)(1) |
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7.6 |
| (b)(2) |
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7.6 |
| (c) |
|
7.6 |
| (d) |
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7.6 |
| 314(a) |
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3.10; 3.16; 12.5 |
| (b) |
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N.A. |
| (c)(1) |
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12.4 |
| (c)(2) |
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12.4 |
| (c)(3) |
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N.A. |
| (d) |
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N.A. |
| (e) |
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12.5 |
| 315(a) |
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7.1 |
| (b) |
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7.5; 12.2 |
| (c) |
|
7.1 |
| (d) |
|
7.1 |
| (e) |
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6.11 |
| 316(a)(last sentence) |
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12.6 |
| (a)(1)(A) |
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6.5 |
| (a)(1)(B) |
|
6.4 |
| (a)(2) |
|
N.A. |
| (b) |
|
6.7 |
| (c) |
|
9.4 |
| 317(a)(1) |
|
6.8 |
| (a)(2) |
|
6.9 |
| (b) |
|
2.4 |
| 318(a) |
|
12.1 |
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture.
v
This INDENTURE dated as of March 30, 2015, is among CONSOL Energy Inc., a Delaware
corporation (the “Company”), the Subsidiary Guarantors (as defined herein) party hereto and Wells Fargo Bank, National Association, a national banking association (the “Trustee”), 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 (i) the
Company’s 8.000% Senior Notes, Series A, due 2023, issued on the date hereof and the Subsidiary Guarantees thereof by the Subsidiary Guarantors (the “Initial Securities”), (ii) if and when issued, an unlimited principal
amount of additional 8.000% Senior Notes, Series A, due 2023 in a non-registered offering or 8.000% Senior Notes, Series B, due 2023 in a registered offering of the Company, and the Subsidiary Guarantees thereof by the Subsidiary Guarantors, that
may be offered from time to time subsequent to the Issue Date, all as provided in and subject to Section 2.1 (the “Additional Securities”), and (iii) if and when issued, the Company’s 8.000% Senior Notes, Series B,
due 2023 and the Subsidiary Guarantees thereof by the Subsidiary Guarantors that may be issued from time to time in exchange for Initial Securities or any Additional Securities in an offer registered under the Securities Act as provided in a
Registration Rights Agreement, as hereinafter defined (the “Exchange Securities,” and together with the Initial Securities and Additional Securities, the “Securities”):
ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
“Additional Assets” means:
(1) any property or assets (other than Indebtedness and Capital Stock) used or useful in a Permitted Business;
(2) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary; or
(3) Capital Stock constituting a non-controlling interest in any Person
that at such time is a Restricted Subsidiary;
provided that any such Restricted Subsidiary described in clauses (2) or (3) above is
primarily engaged in a Permitted Business.
“Additional Interest” means the interest payable as a consequence of
the failure to effectuate in a timely manner the exchange offer or shelf registration procedures set forth in a Registration Rights Agreement.
“Additional Securities” has the meaning ascribed to it in the second introductory paragraph of this Indenture.
1
“Adjusted Consolidated Net Tangible Assets” or “ACNTA” means
(without duplication), as of the date of determination:
(1) the sum of:
(a) the discounted future net revenues from proved oil and natural gas reserves of a Person and its Restricted
Subsidiaries calculated in accordance with SEC guidelines before any state or Federal income taxes, as estimated in a reserve report prepared as of the end of such Person’s most recently completed fiscal year, which reserve report is prepared,
audited or reviewed by independent petroleum engineers as to proved reserves accounting for at least 80% of all such discounted future net revenues and by the Company’s petroleum engineers with respect to any other proved reserves covered by
such report, as increased by, as of the date of determination, the estimated discounted future net revenues from:
(i) estimated proved oil and natural gas reserves of such Person and its Restricted Subsidiaries acquired since the date of
such year-end reserve report, and
(ii) estimated proved oil and natural gas reserves of such Person and its Restricted
Subsidiaries attributable to extensions, discoveries and other additions and upward revisions of estimates of proved oil and natural gas reserves (including previously estimated development costs incurred during the period and the accretion of
discount since the prior period end) since the date of such year-end reserve report due to exploration, development or exploitation, production or other activities which would, in accordance with standard industry practice, cause such revisions,
and decreased by, as of the date of determination, the discounted future net revenue attributable to:
(iii) estimated proved oil and natural gas reserves of such Person and its Restricted Subsidiaries reflected in such reserve
report produced or disposed of since the date of such year-end reserve report, and
(iv) reductions in estimated proved
oil and natural gas reserves of such Person and its Restricted Subsidiaries reflected in such reserve report attributable to downward revisions of estimates of proved oil and natural gas reserves since such year-end due to changes in geological
conditions or other factors which would, in accordance with standard industry practice, cause such revisions;
in the case of the
preceding clauses (i) through (iv), calculated on a pre-tax basis in accordance with SEC guidelines (utilizing the prices utilized in such Person’s year-end reserve report) and estimated by such Person’s petroleum engineers or any
independent petroleum engineers engaged by such Person for that purpose;
2
(b) the capitalized costs that are attributable to oil and gas properties of such
Person and its Restricted Subsidiaries to which no proved oil and natural gas reserves are attributable, based on such Person’s books and records as of a date no earlier than the last day of such Person’s most recent quarterly or annual
period for which internal financial statements are available;
(c) the Net Working Capital of such Person and its
Restricted Subsidiaries as of a date no earlier than the last day of such Person’s most recent quarterly or annual period for which internal financial statements are available; and
(d) the greater of:
(i) the net book value, and
(ii) the appraised value, as estimated by independent appraisers, of other tangible assets (including Investments in
unconsolidated Subsidiaries),
in each case, of such Person and its Restricted Subsidiaries as of a date no earlier than the last
day of the date of such Person’s most recent quarterly or annual period for which internal financial statements are available; provided that if no such appraisal has been performed, such Person shall not be required to obtain such an
appraisal and only clause (1)(d)(i) of this definition shall apply,
minus, to the extent not otherwise taken into
account in this clause (1),
(2) the sum of:
(a) minority interests;
(b) any net gas balancing liabilities of such Person and its Restricted Subsidiaries as of the last day of such Person’s
most recent annual or quarterly period for which internal financial statements are available;
(c) the discounted future
net revenues, calculated in accordance with SEC guidelines (utilizing the prices utilized in such Person’s year-end reserve report), attributable to reserves that are required to be delivered to third parties to fully satisfy the obligations of
such Person and its Restricted Subsidiaries with respect to Volumetric Production Payments on the schedules specified with respect thereto; and
(d) the discounted future net revenues, calculated in accordance with SEC guidelines, attributable to reserves subject to
Dollar-Denominated Production Payments that, based on the estimates of production and price assumptions included in determining the discounted future net revenues specified in (1)(a) above, would be necessary to fully satisfy the payment
obligations of such Person and its Restricted Subsidiaries with respect to Dollar-Denominated Production Payments on the schedules specified with respect thereto.
3
If such Person changes its method of accounting from the successful efforts method to the full
costs method or a similar method of accounting, “Adjusted Consolidated Net Tangible Assets” will continue to be calculated as if such Person were still using the successful efforts method of accounting. For the avoidance of doubt,
“oil and gas reserves” shall include any reserves attributable to natural gas liquids.
“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of Voting Stock, by agreement or otherwise. For purposes of this
definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Applicable Premium” means, with respect to a Security at any time, as determined by the Company, the excess of:
(1) the present value at such time of (i) the redemption price of the Security at April 1, 2018 (such
redemption price being set forth in the table appearing in paragraph 5 of the Securities) plus (ii) all required interest payments due on the Security through April 1, 2018 (excluding accrued but unpaid interest to the
redemption date), computed using a discount rate equal to the Treasury Rate as of such time plus 50 basis points discounted to the redemption date on a semi-annual basis (assuming a 360 day year consisting of twelve 30 day months), over
(2) the then outstanding principal of such Security.
“as determined in good faith by the Company” means a determination made in good faith by the Board of Directors of the
Company or any officer of the Company involved in or otherwise familiar with the transaction for which such determination is being made, any such determination being conclusive for all purposes under this Indenture.
“Asset Disposition” means any sale, lease (other than an operating lease), transfer or other disposition (or series of
related sales, leases, transfers or dispositions) by the Company or any Restricted Subsidiary of the Company, including any disposition by means of a merger, consolidation or similar transaction (each referred to for the purposes of this definition
as a “disposition”), of:
(1) any shares of Capital Stock of a Restricted Subsidiary of the Company (other
than directors’ qualifying shares or shares required by applicable law to be held by a Person other than the Company or a Restricted Subsidiary);
(2) all or substantially all the assets of any division or line of business of the Company or any Restricted Subsidiary of the
Company; or
4
(3) any other assets of the Company or any Restricted Subsidiary of the Company
outside of the ordinary course of business of the Company or such Restricted Subsidiary, which “ordinary course of business” includes, for the avoidance of doubt, transfers or dispositions of assets to facilitate the Permitted Business
through operating agreements, working interests, royalty interests, mineral interests, processing agreements, farm-in agreements, farm-out agreements, developments agreements, area of mutual interest agreements, unitization agreements, pooling
agreements, joint bidding agreements, service contracts, joint venture agreements, limited liability company agreements, partnership agreements (whether general or limited), subscription agreements, stock purchase agreements and other similar
agreements with third parties;
provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the
Company and its Subsidiaries taken as a whole will be governed by the provisions of Section 3.9 and/or the provisions of Article IV and not by the provisions of Section 3.5.
Notwithstanding the foregoing, none of the following shall be deemed to be an Asset Disposition:
(1) a disposition of assets between or among the Company and its Restricted Subsidiaries;
(2) a disposition of assets that constitutes a Restricted Payment permitted by Section 3.3, or a Permitted Investment;
(3) an issuance or sale of Equity Interests by a Restricted Subsidiary of the Company to the Company or to a Restricted
Subsidiary of the Company;
(4) an Asset Swap;
(5) the sale or other disposition of Hydrocarbons or other mineral products in the ordinary course of business;
(6) a sale, contribution, conveyance or other disposition of Receivables and related assets of the type specified in the
definition of Qualified Receivables Transaction by or to a Receivables Subsidiary in a Qualified Receivables Transaction;
(7) any Production Payments and Reserve Sales; provided that any such Production Payments and Reserve Sales,
other than incentive compensation programs on terms that are reasonably customary in the Permitted Business for geologists, geophysicists and other providers of technical services to the Company or a Restricted Subsidiary of the Company, shall have
been created, incurred, issued, assumed or Guaranteed in connection with the financing of, and within 60 days after the acquisition of, the property that is subject thereto;
(8) the sale, lease or other disposition of products, services or accounts receivable in the ordinary course of business and
any sale or other disposition of surplus, damaged, worn-out or obsolete assets in the ordinary course of business (including the abandonment or other disposition of intellectual property, including seismic data and
5
interpretations thereof, that is, in the reasonable judgment of the Company, no longer economically practicable to maintain or useful in the conduct of the business of the Company and its
Restricted Subsidiaries taken as whole);
(9) licenses and sublicenses by the Company or any of its Restricted Subsidiaries
of software or intellectual property, including seismic data and interpretations thereof, in the ordinary course of business;
(10) any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other
claims in the ordinary course of business;
(11) the granting of Liens not prohibited by Section 3.6 and dispositions
in connection with Permitted Liens;
(12) the sale or other disposition of cash or Temporary Cash Investments or other
financial instruments;
(13) any sale or other disposition of Equity Interests in an Unrestricted Subsidiary;
(14) the early termination or unwinding of any Hedging Obligations; and
(15) a single transaction or series of related transactions that involve the disposition of assets with a Fair Market Value of
less than $20.0 million.
“Asset Swap” means any substantially contemporaneous (and in any event occurring within
180 days of each other) purchase and sale or exchange of any assets or properties used or useful in the Permitted Business between the Company or any of its Restricted Subsidiaries and another Person; provided that the Fair Market Value of
the properties or assets traded or exchanged by the Company or such Restricted Subsidiary (together with any cash) is reasonably equivalent to the Fair Market Value of the properties or assets (together with any cash) to be received by the Company
or such Restricted Subsidiary, and provided further that any net cash received must be applied in accordance with the provisions of Section 3.5, if then in effect.
“Average Life” means, as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient
obtained by dividing
(1) the sum of the products of the numbers of years from the date of determination to the dates of
each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Preferred Stock multiplied by the amount of such payment by
(2) the sum of all such payments.
“Bankruptcy Law” means Title 11 of the United States Code or any similar Federal or state law for the relief of debtors.
6
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule
13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial
ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms
“Beneficially Owns” and “Beneficially Owned” have corresponding meanings. For purposes of this definition, a Person shall be deemed not to Beneficially Own securities that are the subject of a stock purchase
agreement, merger agreement, amalgamation agreement, arrangement agreement or similar agreement until consummation of the transactions or, as applicable, series of related transactions contemplated thereby.
“Board of Directors” means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of
such Board.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by its Board of Directors and to be in full force and effect on the date of such certification.
“Business Day” means each day which is not a Legal Holiday (as defined in this Indenture).
“Capital Lease Obligation” means an obligation that is required to be classified and accounted for as a capital lease for
financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. Notwithstanding the foregoing, any lease (whether entered into
before or after the Issue Date) that would have been classified as an operating lease pursuant to GAAP as in effect on the Issue Date will be deemed not to represent a Capital Lease Obligation.
“Capital Stock” of any Person means (1) in the case of a corporation, corporate stock; (2) in the case of an
association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership interests (whether
general or limited) or membership interests; and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from
all of the foregoing any debt securities exercisable for, exchangeable for or convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
“Change of Control” means:
(1) the consummation of any transaction (including any merger or consolidation) the result of which is that any
“person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the Beneficial Owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company;
7
(2) the shareholders of the Company shall have approved any plan of liquidation
or dissolution of the Company; or
(3) the direct or indirect sale, lease, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company (including Equity Interests of Restricted Subsidiaries of the Company) and its Subsidiaries taken as a
whole to any Person other than a Restricted Subsidiary of the Company (it being understood that a Qualified Spin Transaction shall not constitute the sale or other transfer of all or substantially all of the Company’s and its Restricted
Subsidiaries’ assets).
Notwithstanding the preceding, (i) a conversion of the Company or any of its Restricted Subsidiaries from a corporation,
limited partnership, limited liability company or other form of entity to a limited liability company, corporation, limited partnership or other form of entity or (ii) an exchange of all of the outstanding Capital Stock in one form of entity
for Capital Stock in another form of entity shall not constitute a Change of Control, so long as immediately following such conversion or exchange the “persons” (as that term is used in Sections 13(d) and 14(d) of the Exchange Act) who
Beneficially Owned the Capital Stock of the Company immediately prior to such transactions continue to Beneficially Own in the aggregate more than 50% of the Voting Stock of such entity, or continue to Beneficially Own sufficient Capital Stock in
such entity to elect a majority of its directors, managers, trustees or other persons serving in a similar capacity for such entity or its general partner, as applicable, and, in either case no “person” Beneficially Owns more than 50% of
the Voting Stock of such entity or its general partner, as applicable.
“CNX Funding” means CNX Funding Corporation, a
Delaware corporation.
“Company” means the Person named as the “Company” in the first introductory paragraph of
this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Consolidated Cash Flow” for any period means, with respect to any specified Person for any period, the sum of its
Consolidated Net Income, plus, to the extent deducted in calculating such Consolidated Net Income:
(1) Consolidated
Interest Expense;
(2) provision for taxes based on income or profits (including state franchise taxes accounted for as
income taxes in accordance with GAAP) of such Person and its Restricted Subsidiaries for such period;
(3) depletion,
depreciation and impairment charges and expenses of such Person and its Restricted Subsidiaries for such period;
8
(4) amortization expense (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) of such Person and its Restricted Subsidiaries for such period;
(5) if such Person accounts for its oil and natural gas operations using successful efforts or a similar method of accounting,
exploration and abandonment expense of such Person and its Restricted Subsidiaries for such period; and
(6) all other
non-cash charges, including non-cash charges taken pursuant to FASB ASC 815 (excluding any such non-cash charge to the extent that it represents an accrual of or reserve for cash charges in any future period or amortization of a prepaid cash expense
that was paid in a prior period except such amounts as the Company determines in good faith are nonrecurring or represent a write-off, write-down or reserve with respect to a current asset),
minus all non-cash items increasing Consolidated Net Income for such period (other than any such non-cash item to the extent that it (i) will
result in the receipt of cash payments in any future period or (ii) represents the reversal of any accrual, or cash reserve for, anticipated cash expenditures in any prior period where such accrual or reserve is no longer required).
“Consolidated Coverage Ratio” of any Person as of any date of determination means the ratio of:
(1) the aggregate amount of Consolidated Cash Flow of such Person for the period of the most recent four consecutive fiscal
quarters for which internal financial statements are available prior to the date of such determination to
(2) Consolidated
Interest Expense of such Person for such four fiscal quarters.
In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, Guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness or issues, repurchases or redeems Preferred Stock subsequent to the commencement of the period for which the Consolidated
Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Consolidated Coverage Ratio is made (the “Calculation Date”), then the Consolidated Coverage Ratio will be calculated
giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of Preferred Stock, and the use of the proceeds
therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period (except that in making such calculation, the amount of Indebtedness under any revolving Credit Facility outstanding on the Calculation Date will
be deemed to be (i) the average daily balance of such Indebtedness during such four-quarter period or such shorter period for which such facility was outstanding or (ii) if such revolving Credit Facility was created after the end of such
four-quarter period, the average daily balance of such Indebtedness during the period from the date of creation of such revolving Credit Facility to the Calculation Date, provided that such average daily balance shall take into account any
repayment of Indebtedness under such revolving Credit Facility to the extent of any related commitment termination). For purposes of this definition, whenever pro
9
forma effect is to be given to any calculation under this definition, the pro forma calculations will be determined either (i) in accordance with Regulation S-X under the Securities Act
or (ii) in good faith by the chief financial or accounting officer of such Person; provided that such officer may in his or her discretion include any reasonably identifiable and factually supportable pro forma changes to Consolidated
Cash Flow, including any pro forma expenses and cost reductions, that have occurred or in the judgment of such officer are reasonably expected to occur within 12 months of the date of the applicable transaction (regardless of whether such expense or
cost reduction or any other operating improvements could then be reflected properly in pro forma financial statements prepared in accordance with Regulation S-X under the Securities Act or any other regulation or policy of the SEC) and that are set
forth in an Officers’ Certificate signed by the chief financial or accounting officer of such Person that states (a) the amount of each such adjustment, (b) that such adjustments are based on the reasonable good faith belief of the
officers executing such Officers’ Certificate at the time of such execution and the (c) factual basis on which such good faith belief is based.
In addition, for purposes of calculating the Consolidated Coverage Ratio:
(1) acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers
or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Restricted
Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date, or that are to be made on the Calculation Date, will be given pro forma effect as if they had occurred on the
first day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;
(3) the Consolidated Interest Expense attributable to discontinued operations, as determined in accordance with GAAP, and
operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Consolidated Interest Expense will not be obligations of the
specified Person or any of its Restricted Subsidiaries following the Calculation Date;
(4) any Person that is a Restricted
Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging
Obligation has a remaining term as at the Calculation Date in excess of 12 months).
10
“Consolidated Interest Expense” means, for any period, the total interest
expense of the specified Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP (excluding (i) any interest attributable to Dollar-Denominated Production Payments, (ii) write-off
of deferred financing costs and (iii) accretion of interest charges on future plugging and abandonment obligations, future retirement benefits and other obligations that do not constitute Indebtedness), plus, to the extent not included in such
total interest expense, and to the extent incurred by such Person or its Restricted Subsidiaries, without duplication:
(1)
interest expense attributable to Capital Lease Obligations;
(2) capitalized interest;
(3) non-cash interest expense;
(4) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance
financing;
(5) net costs (including amortization of fees and up-front payments) associated with interest rate caps and
other interest rate and currency options that, at the time entered into, resulted in such Person and its Restricted Subsidiaries being net payees as to future payouts under such caps or options, and interest rate and currency swaps and forwards for
which such Person or any of its Restricted Subsidiaries has paid a premium;
(6) dividends (excluding dividends paid in
Equity Interests which are not Disqualified Stock) in respect of all Disqualified Stock held by Persons other than such Person or a Restricted Subsidiary of such Person; and
(7) interest accruing on any Indebtedness of any other Person to the extent such Indebtedness is Guaranteed by such Person or
any of its Restricted Subsidiaries or secured by a Lien on assets of such Person or any of its Restricted Subsidiaries to the extent such Indebtedness constitutes Indebtedness of such Person or such Restricted Subsidiary (whether or not such
Guarantee or Lien is called upon);
provided, however, that “Consolidated Interest Expense” shall not include any amortization of
costs relating to original debt issuances other than the amortization of debt discount related to the issuance of zero coupon securities or other securities with an original issue price of not more than 90% of the principal thereof.
11
“Consolidated Net Income” means, with respect to any specified Person for any
period, the aggregate net income (loss) of such Person and its Subsidiaries determined on a consolidated basis in accordance with GAAP and without any reduction in respect of Preferred Stock dividends; provided, however, that there
shall not be included in such Consolidated Net Income:
(1) any net income of any other Person if such other Person is not
a Restricted Subsidiary, except that:
(a) subject to the exclusion contained in clause (4) of this definition, the
specified Person’s equity in the net income of such other Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such other Person during such period to the specified
Person or any of its Restricted Subsidiaries as a dividend or other distribution (subject, in the case of a dividend or other distribution paid to a Restricted Subsidiary, to the limitations contained in clause (2) of this definition); and
(b) the specified Person’s equity in a net loss of any such other Person for such period shall be included in determining
such Consolidated Net Income;
(2) any net income of any Restricted Subsidiary of such Person (other than a Subsidiary
Guarantor) if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Company, except that:
(a) subject to the exclusion contained in clause (3) below, the Company’s equity in the net income of any such
Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary of the
Company as a dividend or other distribution (subject, in the case of a dividend or other distribution paid to another Restricted Subsidiary, to the limitation contained in this clause); and
(b) the Company’s equity in a net loss of any such Restricted Subsidiary for such period shall be included in determining
such Consolidated Net Income;
(3) any income or loss attributed to discontinued operations;
(4) any extraordinary gains or losses, together with any related provision for taxes on such gains or losses;
(5) any non-cash compensation expense realized for grants of performance shares, stock, stock options or other equity-based
awards;
(6) unrealized losses and gains under derivative instruments included in the determination of Consolidated Net
Income, including those resulting from the application of FASB ASC 815;
(7) any asset impairment or write-downs on Oil and
Gas Properties or other assets under GAAP or SEC guidelines; and
(8) the cumulative effect of a change in accounting
principles.
12
Notwithstanding the foregoing, for the purposes of Section 3.3 only, there shall be excluded from
Consolidated Net Income any dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary of the Company to the extent such dividends, repayments or transfers
increase the amount of Restricted Payments permitted under such covenant pursuant to clause (3)(f) of the first paragraph thereof.
“Credit Agreement” means the Amended and Restated Credit Agreement, dated as of June 18, 2014, by and among CONSOL
Energy Inc., the guarantors party thereto, and the lenders and agents party thereto, including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, restated,
modified, renewed, refunded, replaced, refinanced or increased in whole or in part from time to time.
“Credit
Facilities” means one or more debt facilities (including the Credit Agreement), indentures or commercial paper facilities, in each case, with banks or other institutional lenders or investors providing for revolving credit loans, term
loans, Production Payments, capital market financings, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit,
in each case, as amended, restated, modified, renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or Refinanced (including by means of sales of debt securities to institutional investors) in whole or in part
from time to time.
“Currency Agreement” means in respect of a Person any foreign exchange contract, currency swap
agreement or other similar agreement to which such Person is a party or a beneficiary.
“Custodian” means any receiver,
trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“Customary Recourse Exceptions”
means, with respect to any Non-Recourse Debt of an Unrestricted Subsidiary, exclusions from the exculpation provisions with respect to such Non-Recourse Debt for the voluntary bankruptcy of such Unrestricted Subsidiary, fraud, misapplication of
cash, environmental claims, waste, willful destruction and other circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements in non-recourse financings.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Definitive Securities” means certificated Securities.
“De Minimis Amount” means a principal amount of Indebtedness that does not exceed $10.0 million.
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“Designated Non-Cash Consideration” means the Fair Market Value of non-Cash
Consideration received by the Company or a Restricted Subsidiary of the Company in connection with an Asset Disposition that is so designated as Designated Non-Cash Consideration pursuant to an Officers’ Certificate, setting forth the basis of
such valuation and executed by the chief financial officer and one other officer of the Company, less the amount of cash or Temporary Cash Investments received in connection with a subsequent sale of or collection on such Designated Non-Cash
Consideration.
“Disqualified Stock” means any Capital Stock of a Person or any of its Restricted Subsidiaries that by
its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, in either case at the option of the holder thereof) or otherwise i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, ii) is or may become redeemable or repurchaseable at the option of the holder thereof, in whole or in part or iii) is convertible or exchangeable at the option of the holder thereof for Indebtedness or Disqualified Stock, on or prior
to the earlier of, in the case of clause (a), (b) or (c), (i) 91 days after the Stated Maturity of the Securities and (ii) the date on which no Securities are outstanding (provided that only the portion of Capital Stock which
is mandatorily redeemable or matures or is redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock), in each case other than in exchange for Capital Stock of the Company (other than Disqualified
Stock).
Notwithstanding the preceding sentence:
(1) any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset disposition will not constitute Disqualified Stock so long as the right to have such Capital Stock repurchased upon a change of control or asset
disposition is no more favorable to the holders thereof than the requirements set forth in Sections 3.5 and 3.9;
(2) any
Capital Stock issued to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by
the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations; and
(3) any Capital
Stock held by any future, current or former employee, director, manager or consultant (or their respective trusts, estates, investment funds, investment vehicles or immediate family members) of the Company or any of its Subsidiaries, in each case
upon the termination of employment or death of such person pursuant to any stock option plan or any other management or employee benefit plan or agreement shall not constitute Disqualified Stock solely because it may be required to be repurchased by
the Company or its Subsidiaries.
“Dollar-Denominated Production Payments” means production payment obligations recorded
as liabilities in accordance with GAAP, together with all undertakings and obligations in connection therewith.
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“Domestic Subsidiary” means any Restricted Subsidiary of the referent Person
that was formed under the laws of the United States of America or any state thereof or the District of Columbia.
“DTC”
means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depository institution hereinafter appointed by the Company.
“Equity Interests” of any Person means (1) any and all Capital Stock of such Person and (2) all rights to purchase,
warrants or options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such Capital Stock of such Person, but excluding from all of the foregoing any debt securities exercisable for,
exchangeable for or convertible into Equity Interests, regardless of whether such debt securities include any right of participation with Equity Interests.
“Equity Repurchase” means the repurchase or other acquisition or retirement for value of any Equity Interests of the Company
pursuant to any stock repurchase plan of the Company approved by the Board of Directors of the Company and effected in accordance with Rule 10b-18 under the Exchange Act or otherwise in accordance with applicable law.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Guarantee” means each Guarantee of the obligations with respect to the Exchange Securities.
“Exchange Securities” has the meaning ascribed to it in the second introductory paragraph of this Indenture.
“Excluded Contributions” means the net cash proceeds received by the Company after the Issue Date from contributions to its
common equity capital or the sale (other than to a Subsidiary of the Company) of Equity Interests (other than Disqualified Stock) of the Company, in each case designated as “Excluded Contributions” pursuant to an Officers’ Certificate
executed by an officer of the Company.
“Existing Receivables Financing” means the receivables financing and related
transactions in connection with (i) that certain Amended and Restated Receivables Purchase Agreement, dated as of April 30, 2007, by and among the Company, CNX Funding and the other parties from time to time party thereto, and
(ii) that certain Purchase and Sale Agreement, dated as of April 30, 2003, by and among CNX Funding, the Company and the other parties from time to time party thereto, in each case as amended, restated, renewed supplemented or otherwise
modified from time to time.
“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors of the Company in the case of amounts of $50.0 million or more and otherwise by an officer of the Company (unless
otherwise provided in this Indenture), any such determination being conclusive for all purposes under this Indenture.
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“FASB ASC 815” means Financial Accounting Standards Board Accounting Standards
Codification Topic No. 815, Derivatives and Hedging.
“GAAP” means generally accepted accounting principles in the
United States of America as in effect from time to time.
“Government Securities” means securities that are:
(1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in
either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such
Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest
on the Government Securities evidenced by such depository receipt.
“Guarantee” means, without duplication, any
obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any Person and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such Person (whether
arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or
(2) entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning. The term “Guarantor” shall mean any Person Guaranteeing
any obligation.
“Hedging Contract” means any puts, cap transactions, floor transactions, collar transactions, forward
contract, commodity swap agreement, commodity option agreement or other similar agreement or arrangement in respect of Hydrocarbons to be used, produced, processed or sold by the Company or any of its Restricted Subsidiaries that are customary in
the Permitted Business and designed to protect such Person against fluctuations in or manage exposure to Hydrocarbon prices and not for speculative purposes.
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“Hedging Obligations” of any Person means the obligations of such Person
pursuant to any Hedging Contract, Interest Rate Agreement or Currency Agreement.
“Holder” or
“Securityholder” means a Person in whose name a Security is registered in the Securities Register.
“Hydrocarbons” means coal, oil, natural gas, casing head gas, drip gasoline, natural gasoline, condensate, distillate, liquid
hydrocarbons, gaseous hydrocarbons and all constituents, elements or compounds thereof and products refined or processed therefrom.
“IAI” means an institutional “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.
“Immaterial Subsidiary” means any Restricted Subsidiary that had:
(1) assets having an aggregate book value, as of the end of the fiscal year most recently ended, not exceeding $1,000,000; and
(2) Consolidated Net Income not exceeding $1,000,000 for such fiscal year,
provided that a Restricted Subsidiary will not be considered to be an Immaterial Subsidiary if it, directly or indirectly, Guarantees or otherwise
provides direct credit support for any Indebtedness of the Company.
“Indebtedness” means, with respect to any
Person on any date of determination (without duplication):
(1) the principal of and premium (if any) in respect of
(a) indebtedness of such Person for money borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable;
(2) all Capital Lease Obligations of such Person;
(3) all obligations of such Person issued or assumed as the deferred purchase price of property (which purchase price is due
more than six months after the date of taking delivery of title to such property), including all obligations of such Person for the deferred purchase price of property under any title retention agreement (but excluding trade accounts payable arising
in the ordinary course of business);
(4) all obligations of such Person for the reimbursement of any obligor on any letter
of credit, bankers’ acceptance or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (1) through (3) of this paragraph) entered into
in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the
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extent drawn upon, such drawing is reimbursed no later than the tenth Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of credit);
(5) Hedging Obligations;
(6) all obligations of the type referred to in clauses (1) through (5) of this paragraph of other Persons and all
dividends of other Persons for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee; and
(7) all obligations of the type referred to in clauses (1) through (6) of this paragraph of other Persons secured by
any Lien on any property or asset of such first-mentioned Person (whether or not such obligation is assumed by such first-mentioned Person), the amount of such obligation being deemed to be the lesser of the value of such property or assets or the
amount of the obligation so secured.
The “amount” or “principal amount” of any Indebtedness or Disqualified Stock or
other Preferred Stock outstanding at any time of determination as used herein shall be as set forth below or, if not set forth below, determined in accordance with GAAP:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness;
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date of determination; and
(b) the amount of the Indebtedness of the other Person;
(4) in the case of any Capital Lease Obligation, the amount determined in accordance with the definition thereof;
(5) in the case of any Preferred Stock, (a) if other than Disqualified Stock, the greater of its voluntary or involuntary
liquidation preference and its maximum fixed redemption price or repurchase price or (b) if Disqualified Stock, as specified in the definition thereof;
(6) in the case of any Interest Rate Agreements included in the definition of “Permitted Debt,” zero;
(7) in the case of all other unconditional obligations, the amount of the liability thereof determined in accordance with GAAP;
and
(8) in the case of all other contingent obligations, the maximum liability at such date of such Person.
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For purposes of determining any particular amount of Indebtedness, (i) Guarantees of, or
obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit
Facility and are being treated as incurred pursuant to clause (1) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then the amount of such other Indebtedness equal to the face amount of
such letters of credit shall not be included. If Indebtedness is secured by a letter of credit that serves only to secure such Indebtedness, then the total amount deemed incurred shall be equal to the greater of (a) the principal of such
Indebtedness and (b) the amount that may be drawn under such letter of credit.
None of the following shall constitute Indebtedness:
(1) Indebtedness arising from agreements providing for indemnification or adjustment of purchase price or from Guarantees
securing any obligations of the Company or any of its Subsidiaries pursuant to such agreements, incurred or assumed in connection with the disposition of any business, assets or Subsidiary of the Company, other than Guarantees or similar credit
support by the Company or any of its Subsidiaries of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition;
(2) obligations to pay accrued expenses, any trade payables or other similar liabilities to trade creditors and other accrued
current liabilities incurred in the ordinary course of business as the deferred purchase price of property;
(3) any
liability for Federal, state, local or other taxes owed or owing by such Person;
(4) obligations to pay royalties and
other amounts due in the ordinary course of business to royalty and working interest owners;
(5) obligations arising from
Guarantees to suppliers, lessors, licensees, contractors, franchisees or customers incurred in the ordinary course of business;
(6) obligations (other than express Guarantees of Indebtedness for borrowed money) in respect of Indebtedness of other Persons
arising in connection with (a) trade acceptances and (b) endorsements of instruments for deposit in the ordinary course of business;
(7) obligations arising from the honoring by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary course of business; provided that such obligation is extinguished within two Business Days of its incurrence;
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(8) obligations in respect of any obligations under workers’ compensation
laws and similar legislation;
(9) obligations under Production Payments and Reserve Sales, and any obligations that do not
pertain to the borrowing of money under all contracts and other agreements, instruments or arrangements described in the definition of “Oil and Gas Liens”;
(10) any unrealized losses or charges in respect of Hedging Obligations (including those resulting from the application of FASB
ASC 815);
(11) Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the
operations and business of the Company and its Restricted Subsidiaries; and
(12) any repayment or reimbursement obligation
of such Person or any of its Restricted Subsidiaries with respect to Customary Recourse Exceptions, unless and until an event or circumstance occurs that triggers the Person’s or such Restricted Subsidiary’s direct repayment or
reimbursement obligation (as opposed to contingent or performance obligations) to the lender or other Person to whom such obligation is actually owed, in which case the amount of such direct payment or reimbursement obligation shall constitute
Indebtedness.
“Indenture” means this Indenture as amended or supplemented from time to time.
“Initial Purchasers” means Goldman, Sachs & Co. and the other initial purchasers listed in Schedule A of the
Purchase Agreement dated March 25, 2015 among the Company, the Subsidiary Guarantors and such initial purchasers relating to the Initial Securities.
“Initial Securities” has the meaning ascribed to it in the second introductory paragraph of this Indenture.
“interest” with respect to the Securities means interest with respect thereto and Additional Interest, if any.
“Interest Rate Agreement” means any non-speculative interest rate swap agreement, interest rate cap agreement or other
financial agreement or arrangement designed to protect the Company or any Restricted Subsidiary of the Company against or manage exposure to fluctuations in interest rates.
“Investment” in any Person means any (1) direct or indirect advance, loan or other extensions of credit (including by
way of Guarantee or similar arrangement) or capital contribution to (including any transfer of cash or other property to others or any payment for property or services for the account or use of others but excluding (a) advances to customers or
joint interest partners or drilling partnerships sponsored by the Company or any Restricted Subsidiary of the Company in the ordinary course of business that are recorded as accounts receivable on the balance sheet of the lender,
(b) commission, travel and similar advances to officers, directors and employees made in the ordinary course of business and (c) prepaid
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expenses or deposits and trade payables and extensions of trade credit on commercially reasonable terms in accordance with normal trade practices), (2) all items that are or would be
classified as investments on a balance sheet or (3) any purchase or acquisition of Capital Stock, Indebtedness or other similar securities (excluding any interest in an oil or natural gas leasehold to the extent constituting a security under
applicable law) issued by such Person. Except as otherwise provided for in this Indenture, the amount of an Investment shall be its Fair Market Value at the time the Investment is made and without giving effect to subsequent changes in value. If the
Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Capital Stock of any Restricted Subsidiary of the Company, or any Restricted Subsidiary of the Company issues any Capital Stock, in either case, such that, after
giving effect to any such sale or disposition, such Person is no longer a Subsidiary, the Company shall be deemed to have made an Investment on the date of any such sale or other disposition equal to the Fair Market Value of the Capital Stock of and
all other Investments in such Restricted Subsidiary retained.
For purposes of the definition of “Unrestricted Subsidiary,” the
definition of “Restricted Payment” and Section 3.3:
(1) “Investment” shall include the
portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary equal to an amount (if positive) equal to
(i) the Company’s “Investment” in such Subsidiary at the time of such redesignation less (ii) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of
such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its Fair Market Value at the time of such transfer.
“Investment Grade Rating” means a rating of Baa3
or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) (or, in each case, if such Rating Agency ceases to
rate the Securities for reasons outside of the control of the Company, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).
“Issue Date” means the first date on which Securities are issued under this Indenture.
“Joint Venture” means any Person that is not a direct or indirect Subsidiary of the Company in which the Company or any of
its Restricted Subsidiaries makes any equity Investment.
“Lien” means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).
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“Moody’s” means Moody’s Investor’s Service, Inc. and its
successors.
“Net Available Cash” from an Asset Disposition means cash payments received therefrom (including any cash
payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such assets or received in any other noncash form), in each case net of:
(1)
all legal, title and recording tax expenses, commissions and other fees (including financial and other advisory fees) and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be accrued as a liability under
GAAP, as a consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by any assets
subject to such Asset Disposition, in accordance with the terms of any Lien upon or other security agreement of any kind with respect to such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law, be repaid out of the proceeds from such Asset Disposition;
(3) all distributions and other payments
required to be made to non-controlling interest holders in Subsidiaries or Joint Ventures as a result of such Asset Disposition; and
(4) the deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities
associated with the assets disposed in such Asset Disposition and retained by the Company or any Restricted Subsidiary of the Company after such Asset Disposition.
“Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale
net of attorneys’ fees, accountants’ fees, initial purchasers’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
“Net Working Capital” of any Person means:
(1) all current assets of such Person and its Restricted Subsidiaries; minus
(2) all current liabilities of such Person and its Restricted Subsidiaries, except current liabilities included in
Indebtedness;
in each case, determined in accordance with GAAP.
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“Non-Recourse Debt” means, with respect to Indebtedness of any Unrestricted
Subsidiary or Joint Venture, Indebtedness:
(1) as to which neither the Company nor any of its Restricted Subsidiaries
(a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable as a guarantor or otherwise, except for Customary Recourse Exceptions
and except by the pledge of (or a Guarantee limited in recourse solely to) the Equity Interests of such Unrestricted Subsidiary or Joint Venture; and
(2) as to which the lenders will not have any recourse to the Capital Stock or assets of the Company or any of its Restricted
Subsidiaries (other than the Equity Interests of such Unrestricted Subsidiary or Joint Venture), except for Customary Recourse Exceptions.
“Non-U.S. Person” means a Person who is not a U.S. person (as defined in Regulation S).
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in
bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, Federal or foreign law), other monetary obligations,
penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and Guarantees of payment of such principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
“Offering Memorandum” means the final offering memorandum, dated March 25, 2015, relating to the offering by the Company
of the Initial Securities.
“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, the
Chief Financial Officer, any Vice President, the Treasurer or the Secretary of the Company. Officer of any Subsidiary Guarantor has a correlative meaning.
“Officers’ Certificate” means a certificate signed by two Officers of the Company.
“Oil and Gas Liens” means:
(1) Liens on any specific property or any interest therein, construction thereon or improvement thereto to secure all or any
part of the costs incurred for surveying, exploration, drilling, extraction, development, operation, production, construction, alteration, repair or improvement of, in, under or on such property and the plugging and abandonment of wells located
thereon (it being understood that, in the case of Oil and Gas Properties, or any interest therein, costs incurred for “development” shall include costs incurred for all facilities relating to such properties or to projects, ventures or
other arrangements of which such properties form a part or which relate to such properties or interests);
(2) Liens on Oil
and Gas Properties to secure obligations incurred or Guarantees of obligations incurred in connection with or necessarily incidental to commitments for the purchase or sale of, or the transportation or distribution of, the products derived from such
property;
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(3) Liens arising under partnership agreements, oil and gas leases,
overriding royalty agreements, joint operating agreements or similar agreements, net profits agreements, production payment agreements, royalty trust agreements, incentive compensation programs on terms that are reasonably customary in the oil and
gas business for geologists, geophysicists and other providers of technical services to the Company or a Restricted Subsidiary of the Company, farm-out agreements, farm-in agreements, division orders, contracts for the sale, purchase, exchange,
transportation, gathering or processing of Hydrocarbons, unitizations and pooling designations, declarations, orders and agreements, development agreements, operating agreements, production sales contracts, area of mutual interest agreements, gas
balancing or deferred production agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, seismic or geophysical permits or agreements, and other agreements which are customary in the oil and gas
business; provided that in all instances, such Liens are limited to the assets that are the subject of the relevant agreement, program, order or contract; and
(4) Liens on pipelines or pipeline facilities that arise by operation of law.
“Oil and Gas Properties” means all properties, including equity or other ownership interests therein, owned by such Person or
any of its Restricted Subsidiaries which contain or are believed to contain “proved oil and gas reserves” as defined in Rule 4-10 of Regulation S-X of the Securities Act.
“Opinion of Counsel” means a written opinion from legal counsel who is acceptable to the Trustee and that meets the
requirements of Section 12.5. Such counsel may be an employee of or counsel to the Company, any Subsidiary of the Company.
“Pari Passu Indebtedness” means any Indebtedness of the Company or any Subsidiary Guarantor that ranks pari passu in
right of payment with the Securities or the Subsidiary Guarantees, as applicable.
“Patriot Act” means the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, as amended, and signed into law October 26, 2001.
“Permitted Acquisition Indebtedness” means Indebtedness or Disqualified Stock of the Company or any of its Restricted
Subsidiaries to the extent such Indebtedness or Disqualified Stock was Indebtedness or Disqualified Stock of any other Person existing at the time (a) such Person became a Restricted Subsidiary of the Company or (b) such Person was merged
or consolidated with or into the Company or any of its Restricted Subsidiaries (in either case, whether or not such Indebtedness was incurred in contemplation of such merger or consolidation); provided that on the date such Person became a
Restricted Subsidiary or the date such Person was merged or consolidated with or into the Company or any of its Restricted Subsidiaries, as applicable, either:
(1) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the
same had occurred at the beginning of the applicable four-quarter period, the Company or such Person (if the Company is not
24
the survivor in the transaction) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in the first paragraph of
Section 3.2; or
(2) immediately after giving effect to such transaction and any related financing transaction on a
pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, the Consolidated Coverage Ratio of the Company or such Person (if the Company is not the survivor in the transaction) is equal to or greater than the
Consolidated Coverage Ratio of the Company immediately prior to such transaction.
“Permitted Business” means the
business conducted by the Company and its Subsidiaries on the Issue Date, and any business of a nature that is or shall have become related to (i) the acquisition, exploration, development, production, operation and disposition of interests in
oil, natural gas and other Hydrocarbon properties, (ii) the gathering, marketing, treating, processing, storage, selling and transporting of any production from such interests or properties, (iii) the treatment, processing, storage,
transportation or marketing of Hydrocarbons and other minerals and products produced in association therewith, (iv) the production of electricity or other sources of power, such as coal- or natural gas-fueled power generation facilities, wind,
solar or hydroelectric power generation facilities or similar activities and (v) any activity that is ancillary to or necessary or appropriate for the activities described in this definition.
“Permitted Business Investments” means Investments of a nature that is or shall have become customary in the Permitted
Business as a means of actively exploiting, exploring for, acquiring, developing, processing, gathering, marketing or transporting Hydrocarbons through agreements, transactions, interests or arrangements which permit one to share risks or costs,
comply with regulatory requirements regarding local ownership or satisfy other objectives customarily achieved through the conduct of Permitted Business jointly with third parties, including (i) ownership interests in oil, natural gas, other
Hydrocarbon properties or any interest therein or gathering, transportation, processing, storage or related systems or ancillary real property interests, (ii) Investments in the form of or pursuant to operating agreements, working interests,
royalty interests, mineral interests, processing agreements, farm-in agreements, farm-out agreements, developments agreements, area of mutual interest agreements, unitization agreements, pooling agreements, joint bidding agreements, service
contracts, joint venture agreements, limited liability company agreements, partnership agreements (whether general or limited), subscription agreements, stock purchase agreements and other similar agreements with third parties, and (iii) direct
or indirect ownership interests or Investments in drilling rigs, fracturing units and other equipment used in the Permitted Business or in Persons that own or provide such equipment.
“Permitted Investment” means:
(1) an Investment in the Company, a Restricted Subsidiary of the Company or a Person that will, as a result of such Investment,
become a Restricted Subsidiary of the Company;
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(2) another Person if as a result of such Investment such other Person is merged
or consolidated with or into, or transfers or conveys all or substantially all its assets to, the Company or a Restricted Subsidiary; provided, however, that such Person’s primary business is a Permitted Business;
(3) an Investment in Temporary Cash Investments;
(4) an Investment in receivables owing to the Company or any of its Restricted Subsidiaries if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with customary trade terms, including such concessionary trade terms as the Company or any such Restricted Subsidiary deems reasonable under the circumstances;
(5) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary course of business;
(6) loans or advances to
officers, directors or employees made in the ordinary course of business;
(7) any Investments received in compromise or
resolution of (a) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of any trade creditor or customer or (b) litigation, arbitration or other disputes;
(8) any Investment made as a result of the receipt of non-Cash Consideration from an Asset Disposition (or a disposition
excluded from the definitions thereof) that was made pursuant to and in compliance with Section 3.5, including pursuant to an Asset Swap;
(9) Investments made pursuant to Hedging Obligations of the Company or its Restricted Subsidiaries;
(10) Investments in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection
with a Qualified Receivables Transaction, including Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Receivables Transaction or any related Indebtedness;
(11) Investments in or payments to SpinCo or its Subsidiaries in connection with a Qualified Spin Transaction and the
transactions relating thereto, including the payment of all fees and expenses related thereto;
(12) in connection with the
management of employee benefit trust funds of the Company or any of its Restricted Subsidiaries, Investment of such employee benefit trust funds in Investments of a type generally and customarily used in the management of employee benefit trust
funds;
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(13) Permitted Business Investments;
(14) Investments resulting from any acquisition of assets or Capital Stock solely in exchange for the issuance of, or with or
out of the net cash proceeds of the substantially concurrent (a) contribution (other than from a Restricted Subsidiary) to the equity capital of the Company in respect of, or (b) sale (other than to a Restricted Subsidiary) of, Equity
Interests (other than Disqualified Stock) of the Company;
(15) Investments resulting from repurchases of the Securities;
(16) any Guarantee of Indebtedness permitted to be incurred by Section 3.2 other than a Guarantee of Indebtedness of
an Affiliate of the Company that is not a Restricted Subsidiary of the Company;
(17) any Investment existing on, or made
pursuant to binding commitments existing on, the Issue Date and any Investment consisting of an extension, modification or renewal of any Investment existing on, or made pursuant to a binding commitment existing on, the Issue Date; provided
that the amount of any such Investment may be increased (a) as required by the terms of such Investment as in existence on the Issue Date or (b) as otherwise permitted under this Indenture;
(18) Investments acquired after the Issue Date as a result of the acquisition by the Company or any Restricted Subsidiary of
the Company of another Person, including by way of a merger, amalgamation or consolidation with or into the Company or any of its Restricted Subsidiaries in a transaction that is not prohibited by Section 4.1, after the Issue Date to the extent
that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(19) endorsements of negotiable instruments and documents in the ordinary course of business;
(20) such Investments consisting of prepaid expenses, negotiable instruments held for collection and lease, utility and
workers’ compensation, performance and other similar deposits made in the ordinary course of business by the Company or any of its Restricted Subsidiaries;
(21) Guarantees of performance or other obligations (other than Indebtedness) arising in the ordinary course in the Permitted
Business, including obligations under oil and natural gas exploration, development, joint operating, and related agreements and licenses, concessions or operating leases related to the Permitted Business; and
(22) other Investments (including Investments in Joint Ventures) in an aggregate amount not to exceed the greater of
(a) $500.0 million and (b) 5.0% of the Company’s ACNTA, in each case, at any one time outstanding (with each Investment being valued as of the date made and without regard to subsequent changes in value); provided that if any
Investment pursuant to this clause (22) is made in any Person that is not a Restricted Subsidiary of the Company at the date of the making of such Investment
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and such Person becomes a Restricted Subsidiary of the Company after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) of this definition and
shall cease to have been made pursuant to this clause (22) for so long as such Person continues to be a Restricted Subsidiary of the Company.
“Permitted Liens” means, with respect to any Person:
(1) Liens securing Indebtedness and other obligations under Credit Facilities incurred pursuant to clause (1) of the
definition of “Permitted Debt”;
(2) Liens securing Indebtedness and other obligations under Credit Facilities
that were permitted by the terms of this Indenture to be incurred pursuant to Section 3.2 (other than pursuant to clause (1) of the definition of “Permitted Debt”); provided that on the date of incurrence of such
Indebtedness, after giving pro forma effect to the incurrence thereof and the application of proceeds therefrom, the Secured Leverage Ratio would not be greater than 2.5 to 1.0;
(3) Liens existing as of the Issue Date;
(4) Liens for the benefit of (or to secure) the Securities, any Subsidiary Guarantee and other obligations arising under this
Indenture;
(5) any Lien existing on any property of a Person at the time such Person is merged or consolidated with or
into the Company or any of its Restricted Subsidiaries or becomes a Restricted Subsidiary of the Company (and not incurred in anticipation of or in connection with such transaction); provided that such Liens are not extended to other property
of the Company or the other Restricted Subsidiaries of the Company;
(6) any Lien existing on any property (including
Capital Stock) at the time of the acquisition thereof (and not incurred in anticipation of or in connection with such transaction); provided that such Liens are not extended to other property of the Company or its Restricted Subsidiaries;
(7) any Lien incurred in the ordinary course of business incidental to the conduct of the business of the Company or any
of its Restricted Subsidiaries or the ownership of their property (including (i) easements, rights of way and similar encumbrances, (ii) rights or title of lessors under leases (other than Capital Lease Obligations), (iii) rights of
collecting banks having rights of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or any of its Restricted Subsidiaries on deposit with or in the possession of such banks, (iv) Liens imposed by law,
including Liens under workers’ compensation or similar legislation and mechanics’, carriers’, warehousemen’s, materialmen’s, suppliers’ and vendors’ Liens, (v) Liens incurred to secure performance of
obligations with respect to statutory or regulatory requirements, performance or return-of-money bonds, insurance or surety bonds, bid, plugging and abandonment and performance bonds other obligations of a like nature and incurred in the ordinary
course of business (including Liens to secure letters of credit issued to assure payment of such obligations) and (vi) Oil and Gas Liens, in each case which are not incurred in connection with the borrowing of money, the obtaining of advances
or credit or the payment of the deferred purchase price of property (other than trade accounts payable arising in the ordinary course of business));
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(8) Liens for taxes, assessments and governmental charges not yet due or the
validity of which are being contested in good faith by appropriate proceedings, promptly instituted and diligently conducted, and for which adequate reserves have been established to the extent required by GAAP as in effect at such time;
(9) Liens incurred to secure appeal bonds and judgment and attachment Liens not constituting a Default, in each case in
connection with litigation or legal proceedings that are being contested in good faith by appropriate proceedings;
(10)
Liens securing Hedging Obligations of the Company and its Restricted Subsidiaries;
(11) Liens securing Capital Lease
Obligations, mortgage financings, purchase money obligations or other Indebtedness incurred pursuant to clause (6) of the definition of “Permitted Debt”; provided that such Liens attach only to the property (a) acquired
with the proceeds of such Indebtedness or (b) which is the subject of such Capital Lease Obligations;
(12) Liens
securing purchase money obligations or other Indebtedness granted in connection with the acquisition by the Company or any of its Restricted Subsidiaries in the ordinary course of business of fixed assets used in a Permitted Business (including the
office buildings and other real property used by the Company or such Restricted Subsidiary in conducting its operations); provided that (a) such Liens attach only to the fixed assets acquired with the proceeds of such purchase money
obligations or other Indebtedness or property and assets affixed or appurtenant thereto; and (b) such purchase money obligations or other Indebtedness is not in excess of the purchase price of such fixed assets;
(13) Liens resulting from the deposit of funds or evidences of Indebtedness in trust for the purpose of decreasing or legally
defeasing Indebtedness of the Company or any of its Restricted Subsidiaries so long as such deposit of funds is permitted by Section 3.3;
(14) Liens on the Equity Interests of a Person that is not a Restricted Subsidiary of the Company to secure obligations of such
Person and any refinancing thereof;
(15) Liens in favor of the Company or a Restricted Subsidiary of the Company;
(16) claims, Liens or encumbrances upon, and defects of title to, real or personal property, including any attachment of
personal or real property or real property or other legal process prior to adjudication of a dispute on the merits, (a) if the validity or amount thereof is being contested in good faith by appropriate and lawful proceedings diligently
conducted so long as levy and execution thereon have been stayed and continue to be stayed, (b) if a final judgment is entered and such judgment is discharged within thirty (30) days of entry, or (c) the payment of which is covered in
full (subject to customary deductible) by insurance;
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(17) precautionary filings under the UCC by a lessor with respect to personal
property leased to such Person;
(18) Liens on insurance policies and proceeds thereof, or other deposits, to secure
insurance premium financings;
(19) Liens on Receivables and related assets of the type specified in the definition of
“Qualified Receivables Transaction” incurred in connection with a Qualified Receivables Transaction;
(20) Liens
on cash, Temporary Cash Investments or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(21) Liens in respect of Production Payments and Reserve Sales; provided that such Liens are limited to the property
that is subject to such Production Payments and Reserve Sales;
(22) other Liens not otherwise permitted hereunder with
respect to Indebtedness that does not in the aggregate exceed at any one time outstanding the greater of (a) $200.0 million and (b) 3.0% of the Company’s ACNTA at the time of incurrence of any Indebtedness secured by a Lien permitted
by this clause (22); and
(23) Liens to renewing, extending, refinancing or refunding a Lien referred to in clauses
(1) through (22) above; provided that (i) such new Lien shall be limited to all or part of the same property (including future improvements thereon and accessions thereto) subject to the original Lien and (ii) the
Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (a) the outstanding principal amount or, if greater, the committed amount of the Indebtedness secured by such original Lien immediately prior
to such extension, renewal, refinancing, refunding or exchange and (b) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement.
“Permitted Marketing Obligations” means Indebtedness of the Company or any Restricted Subsidiary of the Company under letter
of credit or borrowed money obligations, or in lieu of or in addition to such letters of credit or borrowed money, Guarantees of such Indebtedness or other obligation, of the Company or any Restricted Subsidiary of the Company by any other
Restricted Subsidiary of the Company, as applicable, related to the purchase by the Company or any of its Restricted Subsidiaries of Hydrocarbons for which the Company or such Restricted Subsidiary has contracts to sell; provided that, in the
event that such Indebtedness or obligations are Guaranteed by the Company or any such Restricted Subsidiary, then either:
(1) the Person with which the Company or such Restricted Subsidiary has contracts to sell has an Investment Grade Rating from
S&P or Moody’s, or in lieu thereof, a Person Guaranteeing the payment of such obligated Person has an Investment Grade Rating from S&P or Moody’s; or
(2) such Person posts, or has posted for it, a letter of credit in favor of the Company or such Restricted Subsidiary with
respect to all such Person’s obligations to the Company or such Restricted Subsidiary under such contracts.
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“Person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Preferred Stock,” as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over Capital Stock of any other class of such Person.
The term “principal” of a Security means the principal of the Security plus the premium, if any, payable on the Security
which is due or overdue or is to become due at the relevant time.
“Production Payments” means Dollar-Denominated
Production Payments and Volumetric Production Payments, collectively.
“Production Payments and Reserve Sales” means the
grant or transfer by the Company or any of its Restricted Subsidiaries to any Person of a royalty, overriding royalty, net profits interest, Production Payment, partnership or other interest in Oil and Gas Properties, reserves or the right to
receive all or a portion of the production or the proceeds from the sale of production attributable to such properties where the holder of such interest has recourse solely to such production or proceeds of production, subject to the obligation of
the grantor or transferor to operate and maintain, or cause the subject interests to be operated and maintained, in a reasonably prudent manner or other customary standard or subject to the obligation of the grantor or transferor to indemnify for
environmental, title or other matters customary in the Permitted Business, including any such grants or transfers pursuant to incentive compensation programs on terms that are reasonably customary in the Permitted Business for geologists,
geophysicists or other providers of technical services to the Company or any of its Restricted Subsidiaries.
“QIB” means
any “qualified institutional buyer” as such term is defined in Rule 144A.
“Qualified Receivables Transaction”
means the Existing Receivables Financing and any transaction or series of transactions that may be entered into by the Company or any of its Restricted Subsidiaries in which the Company or any such Restricted Subsidiary may sell, contribute, convey
or otherwise transfer to (1) a Receivables Subsidiary (in the case of a transfer by the Company or any Restricted Subsidiaries of the Company) and (2) any other Person (in the case of a transfer by a Receivables Subsidiary), or may grant a
security interest in, any Receivables (whether now existing or arising in the future) of the Company or any Restricted Subsidiary of the Company, and any related assets, including all collateral securing such Receivables, all contracts and all
Guarantees or other obligations in respect of such Receivables, proceeds of such Receivables and other assets (including contract rights) which are customarily transferred or in respect of which security interests are customarily granted in
connection with asset securitization transactions involving Receivables.
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“Qualified Spin Transaction” means the distribution, through one or more
dividends by the Company, of a majority of the Voting Stock of a Subsidiary (“SpinCo”) which, directly or indirectly through one or more Subsidiaries, holds all or substantially all of the Company’s and its Restricted
Subsidiaries’ (a) oil and gas properties and related assets or (b) coal reserves and related assets; in either case, provided:
(1) if such transaction involves the distribution of the Company’s and its Restricted Subsidiaries’ oil and gas
properties and related assets (an “E&P Spin Transaction”), such SpinCo (“E&P SpinCo”) shall become the successor issuer of the Securities upon consummation of such transaction;
(2) concurrently with the consummation of an E&P Spin Transaction, E&P SpinCo shall assume all of the obligations of
the Company under the Securities and this Indenture pursuant to agreements reasonably satisfactory to the Trustee;
(3)
concurrently with the consummation of an E&P Spin Transaction, each Guarantor that is a Subsidiary of E&P SpinCo shall ratify its obligations under its Subsidiary Guarantee by documentation reasonably satisfactory to the Trustee;
(4) immediately after giving effect to the dividends of Voting Stock of SpinCo and the incurrence of any Indebtedness by SpinCo
or its Subsidiaries in connection with such transaction, as if such transaction had occurred at the beginning of the most recently ended four full fiscal quarters for which internal financial statements of the Company (or E&P SpinCo if it is the
successor issuer) are available, the Total Leverage Ratio of the Company (or E&P SpinCo if it is the successor issuer), as determined at the time of the dividend of Capital Stock of SpinCo, would not be greater than 2.75 to 1.0;
(5) no Default or Event of Default shall have occurred and be continuing or would result therefrom; and
(6) the Company (or E&P SpinCo if it is the successor issuer) shall deliver to the Trustee an Officers’ Certificate
and an Opinion of Counsel that such transaction complies with this Indenture and, in the case of such Opinion of Counsel, that any such agreements are legally valid and binding and are enforceable against E&P SpinCo and the Guarantors, subject
to customary exceptions.
Upon assumption of the obligations under the Securities and this Indenture by E&P SpinCo as provided in the
preceding paragraph, E&P SpinCo shall become the successor to CONSOL Energy Inc. and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and CONSOL Energy Inc., as the
predecessor Company, shall be released from all obligations under and with respect to this Indenture and the Securities.
“Rating
Agency” means (1) each of Moody’s and S&P and (2) if Moody’s or S&P ceases to rate the Securities for reasons outside of the control of the Company, a “nationally recognized statistical rating
organization” within the meaning of Section 3(a)(62) of the Exchange Act selected by the Company as a replacement agency for Moody’s or S&P, as the case may be.
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“Receivables” means any Indebtedness and other payment obligations owed to the
Company, any Restricted Subsidiary of the Company or any Receivables Subsidiary, whether constituting an account, chattel paper, payment intangible, instrument or general intangible, in each case arising in connection with (i) the sale of goods
or the rendering of service or (ii) the lease, license, rental or use of equipment, facilities or software, including the obligation to pay any finance charges, fees and other charges with respect thereto.
“Receivables Subsidiary” means a wholly owned Subsidiary of the Company (or another Person formed for the purpose of engaging
in a Qualified Receivables Transaction with the Company or a Restricted Subsidiary of the Company in which the Company or any Restricted Subsidiary of the Company makes an Investment and to which the Company or any Restricted Subsidiary of the
Company transfers Receivables) that engages in no activities other than in connection with the financing of Receivables, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or
activities incidental or related to such business, and that is designated by the Company’s Board of Directors (as provided below) as a Receivables Subsidiary and
(1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which:
(a) is Guaranteed by the Company or any Restricted Subsidiary of the Company (excluding Guarantees of obligations (other than
the principal of, and interest on, Indebtedness) pursuant to representations, warranties, covenants, indemnities and performance guarantees customarily entered into in connection with accounts receivables financings);
(b) is recourse to or obligates the Company or any Restricted Subsidiary of the Company in any way other than pursuant to
representations, warranties, covenants and indemnities customarily entered into in connection with accounts receivables financings; or
(c) subjects any property or asset of the Company or of any Restricted Subsidiary of the Company, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to representations, warranties, covenants and indemnities customarily entered into in connection with accounts receivables financings;
(2) with which neither the Company nor any Restricted Subsidiary of the Company has any material contract, agreement,
arrangement or understanding other than on terms no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company, other than fees payable in the ordinary
course of business in connection with servicing Receivables; and
(3) with which neither the Company nor any Restricted
Subsidiary of the Company has any obligation to maintain or preserve such Receivables Subsidiary’s financial condition (other than customary requirements for the maintenance of a minimum net worth) or cause such Receivables Subsidiary to
achieve certain levels of operating results.
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Notwithstanding the foregoing, CNX Funding shall be deemed to be a Receivables Subsidiary under
the Existing Receivables Financing. Any designation of a Receivables Subsidiary by the Company’s Board of Directors after the Issue Date shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such
designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions.
“Redemption Date” means, with respect to any redemption of Securities, the date of redemption with respect thereto.
“Refinance” means, with respect to any Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or
retire, or to issue other Indebtedness in exchange or replacement for, such Indebtedness. “Refinanced” and “Refinancing” shall have correlative meanings.
“Refinancing Indebtedness” means Indebtedness that Refinances any Indebtedness of the Company or any Restricted Subsidiary of
the Company existing on the Issue Date or incurred in compliance with this Indenture, including Indebtedness that Refinances Refinancing Indebtedness; provided that:
(1) such Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being
Refinanced;
(2) such Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is incurred
that is equal to or greater than the Average Life of the Indebtedness being Refinanced;
(3) such Refinancing Indebtedness
has an aggregate principal amount (or if incurred with original issue discount, an aggregate issue price) that is equal to or less than the aggregate principal amount (or if incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and defeasance costs) under the Indebtedness being Refinanced;
(4) if the refinanced Indebtedness was subordinated in right of payment to the Securities or the Subsidiary Guarantees, as the
case may be, then such Refinancing Indebtedness, by its terms, is subordinate in right of payment to the Securities or the Subsidiary Guarantees, as the case may be, at least to the same extent as the refinanced Indebtedness; and
(5) if the refinanced Indebtedness is purchase money obligations, (a) the holders of such Refinancing Indebtedness agree
that they will look solely to the fixed assets so acquired which secure such Refinancing Indebtedness, and neither the Company nor any Restricted Subsidiary of the Company (i) is directly or indirectly liable for such Refinancing Indebtedness
or (ii) provides credit support, including any undertaking, Guarantee, agreement or instrument, related to such Refinancing Indebtedness that would constitute Indebtedness (other than the grant of a Lien on such acquired fixed assets) and
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(b) no default or event of default with respect to such Refinancing Indebtedness would cause, or permit (after notice or passage of time or otherwise), any holder of any other Indebtedness of the
Company or a Subsidiary Guarantor to declare a default or event of default on such other Indebtedness or cause the payment, repurchase, redemption, defeasance or other acquisition or retirement for value thereof to be accelerated or payable prior to
any scheduled principal payment, scheduled sinking fund payment or maturity;
provided further, however, that Refinancing Indebtedness shall
not include:
(6) Indebtedness of a Subsidiary that Refinances Indebtedness of the Company; or
(7) Indebtedness of the Company or a Restricted Subsidiary of the Company that Refinances Indebtedness of an Unrestricted
Subsidiary.
“Registration Rights Agreement” means that certain registration rights agreement dated as of the Issue Date
by and among the Company, the Subsidiary Guarantors and the Initial Purchasers and, with respect to any Additional Securities, one or more substantially similar registration rights agreements among the Company and the other parties thereto, as such
agreements may be amended from time to time.
“Regulation S” means Regulation S under the Securities Act.
“Reporting Default” means a Default described in Section 6.1(4).
“Restricted Investment” means any Investment other than a Permitted Investment.
“Restricted Payment” with respect to the Company means:
(1) the declaration or payment of any dividends or any other distributions of any sort in respect of its Equity Interests
(including any payment in connection with any merger or consolidation involving the Company) or similar payment to the direct or indirect holders of its Equity Interests, other than:
(a) dividends or distributions payable solely in its Equity Interests (other than Disqualified Stock);
(b) dividends or distributions payable solely to the Company or a Restricted Subsidiary of the Company; and
(c) pro rata dividends or other distributions made by a Restricted Subsidiary of the Company to minority
stockholders (or owners of an equivalent interest in the case of a Subsidiary that is an entity other than a corporation);
(2) the purchase, repurchase, redemption or other acquisition or retirement for value of any Capital Stock of the Company held
by any other Person (other than any acquisition or retirement for value from, or payment to, the Company or any Restricted Subsidiary of the Company);
35
(3) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment of any Subordinated Obligations of the Company (other than (a) any intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries and (b) the purchase, repurchase or other acquisition of Subordinated Obligations acquired in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition); or
(4) the making of any Investment (other than a Permitted Investment) in any Person.
“Restricted Securities” means Initial Securities and Additional Securities bearing the Restricted Securities Legend.
“Restricted Securities Legend” means the legend set forth in Section 2.1(d)(1).
“Restricted Subsidiary” means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary. Unless otherwise
indicated, references to a “Restricted Subsidiary” are to a Restricted Subsidiary of the Company.
“Rule 144A”
means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Ratings Services, a division
of The McGraw-Hill Companies, Inc., and its successors.
“SEC” means the United States Securities and Exchange
Commission.
“Secured Indebtedness” means any Indebtedness of the referent Person or any of its Restricted Subsidiaries
secured by a Lien.
“Secured Leverage Ratio” means, with respect to any Person on any date of determination, the ratio
of:
(1) the aggregate principal amount of Secured Indebtedness of the type referenced under clauses (1), (2) and
(4) of the definition of “Indebtedness” outstanding on such date (and, for this purpose, letters of credit will be deemed to have a principal amount equal to the face amount thereof, whether or not drawn), to:
(2) the aggregate amount of such Person’s Consolidated Cash Flow for the most recent four-quarter period for which
financial information is available.
The Secured Leverage Ratio shall be calculated using the same methodologies and assumptions used to
calculate the Consolidated Coverage Ratio.
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“Securities” has the meaning ascribed to it in the second introductory paragraph
of this Indenture.
“Securities Act” means the Securities Act of 1933 (15 U.S.C. §§ 77a-77aa), as amended.
“Securities Custodian” means the custodian with respect to a Global Security (as appointed by DTC), or any successor Person
thereto and shall initially be the Trustee.
“Senior Debt” means (1) all Indebtedness of the Company or any of its
Restricted Subsidiaries outstanding under Credit Facilities and all obligations under Hedging Obligations with respect thereto; (2) any other Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be incurred under the
terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Securities or any Subsidiary Guarantee; and (3) all obligations with respect to the
items listed in the preceding clauses (1) and (2). Notwithstanding anything to the contrary in the preceding sentence, Senior Debt will not include: (1) any intercompany Indebtedness of the Company or any of its Restricted Subsidiaries to
the Company or any of its Affiliates; or (2) any Indebtedness that is incurred in violation of this Indenture. For the avoidance of doubt, “Senior Debt” will not include any trade payables or taxes owed or owing by the Company or any
of its Restricted Subsidiaries.
“Shelf Registration Statement” shall have the meaning set forth in the applicable
Registration Rights Agreement.
“Significant Subsidiary” means any Restricted Subsidiary that would be a
“Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the
final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
“Stock Offering” means a primary offering, whether
public or private, of shares of Capital Stock (other than Disqualified Stock) of the Company.
“Subordinated Obligation”
means any Indebtedness of the Company or any Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter incurred) which is subordinate or junior in right of payment to, in the case of the Company, the Securities or, in the case of a
Subsidiary Guarantor, its Subsidiary Guarantee pursuant to a written agreement to that effect.
“Subsidiary” means, with
respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by:
(1) such Person;
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(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
“Subsidiary Guarantee” means, individually, any Guarantee of payment of the Securities by a Subsidiary Guarantor pursuant to
the terms of this Indenture and any supplemental indenture thereto, and, collectively, all such Guarantees.
“Subsidiary
Guarantor” means each Subsidiary of the Company that executes this Indenture as a Guarantor and each other Subsidiary of the Company that thereafter Guarantees the Securities pursuant to the terms of this Indenture, in each case until a
successor replaces such Person pursuant to the applicable provisions of this Indenture and, thereafter, means such successor.
“Temporary Cash Investments” means any of the following:
(1) any Investment in direct obligations of the United States of America or any agency thereof or obligations guaranteed by the
United States of America or any agency thereof;
(2) Investments in time deposit accounts, certificates of deposit and
money market deposits maturing within one year of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United
States, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $250.0 million (or the foreign currency equivalent thereof) and has outstanding debt which is rated “A-” (or such similar
equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Section 3(a)(62) of the Exchange Act) or any money-market fund sponsored by a registered broker dealer or mutual fund distributor
whose assets consist of obligations of the types described in clauses (1), (2), (3), (4) and (5) of this definition;
(3) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause
(1) of this definition entered into with a bank meeting the qualifications described in clause (2) of this definition;
(4) Investments in commercial paper, maturing not more than 180 days after the date of acquisition, issued by a Person (other
than an Affiliate of the Company) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any Investment therein is made of
“P-2” (or higher) according to Moody’s or “A-2” (or higher) according to S&P or “R-1” (or higher) by Dominion Bond Rating Service Limited or Canadian Bond Rating Service, Inc. (in the case of a Canadian
issuer);
(5) Investments in securities with maturities of six months or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’s;
38
(6) Investments in asset-backed securities maturing within one year of the date
of acquisition thereof with a long-term rating at the time as of which any Investment therein is made of “A3” (or higher) by Dominion Bond Rating Service Limited or Canadian Bond Rating Service, Inc. (in the case of a Canadian issuer); and
(7) obligations of any foreign government or obligations that possess a guaranty of the full faith and credit of any
foreign government;
(8) obligations of United States government-sponsored enterprises, Federal agencies, and Federal
financing banks that are not otherwise authorized including, but not limited to, (i) United States government-sponsored enterprises such as instrumentalities of the Federal Credit System (Bank for Cooperatives, Federal Land Banks), Federal Home
Loan Banks and Federal National Mortgage Association and (ii) Federal agencies such as instrumentalities of the Department of Housing and Urban Development (Federal Housing Administration, Government National Mortgage Association),
Export-Import Bank, Farmers Home Administration and Tennessee Valley Authority;
(9) debt obligations (other than
commercial paper obligations) of domestic or foreign corporations;
(10) preferred stock obligations with a floating rate
dividend that is reset periodically at auction;
(11) Investments in repurchase agreements collateralized by any of the
above securities eligible for outright purchase; provided that the collateral is delivered to a bank custody account in accordance with the terms of a written repurchase agreement with a dealer or bank; and
(12) Investments in shares of institutional mutual funds whose investment policies are essentially in agreement with the type
and criteria for Investments otherwise set forth in this definition,
provided that Investments described in clauses (7) through (12) of
this definition are restricted to obligations rated no lower than “A3” or “P-1” by Moody’s or “A-” or “A-1” by S&P.
“TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.C. §§77aaa-77bbbb),
as in effect on the date of this Indenture.
39
“Total Leverage Ratio” means, with respect to any Person on any date of
determination, the ratio of:
(1) the aggregate principal amount of Indebtedness of such Person and the Restricted
Subsidiaries of such Person of the type referenced under clauses (1), (2) and (3) of the definition of “Indebtedness” outstanding on such date (and, for this purpose, letters of credit will be deemed to have a principal amount
equal to the face amount thereof, whether or not drawn), to:
(2) the aggregate amount of such Person’s Consolidated
Cash Flow for the most recent four-quarter period for which internal financial statements are available.
The Total Leverage Ratio shall
be calculated using the same methodologies and assumptions used to calculate the Consolidated Coverage Ratio.
“Treasury
Rate” means, in respect of any date of redemption of Securities, the yield to maturity as of the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the Redemption Date to April 1, 2018; provided, however, that if the period from the Redemption Date to April 1, 2018, is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate no later than the second (and no earlier than the fourth) Business Day preceding the applicable Redemption
Date and (2) prior to such Redemption Date file with the Trustee an Officers’ Certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.
“Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the
Trustee, including any vice president, assistant vice president, secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Unrestricted Subsidiary” means (i) CNX Funding and (ii) any other Subsidiary of the Company (including any
newly acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger or consolidation or Investment therein) that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of
the Board of Directors, but only to the extent that CNX Funding or such other Subsidiary:
(1) has no Indebtedness other
than Non-Recourse Debt;
40
(2) except as permitted by Section 3.8, is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not Affiliates of the Company;
(3) is a Person with
respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to
cause such Person to achieve any specified levels of operating results; and
(4) has not Guaranteed or otherwise directly
or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries, except to the extent such Guarantee would be released upon such designation.
All Subsidiaries of an Unrestricted Subsidiary shall also be Unrestricted Subsidiaries.
“Volumetric Production Payments” means production payment obligations recorded as deferred revenue in accordance with GAAP,
together with all undertakings and obligations in connection therewith.
“Voting Stock” of a Person means all classes of
Capital Stock of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
SECTION 1.2. Other Definitions.
|
|
|
| Term |
|
Defined in Section |
|
|
| “Additional Restricted Securities” |
|
2.1(b) |
|
|
| “Affiliate Transaction” |
|
3.8 |
|
|
| “Agent Members” |
|
2.1(e)(iii) |
|
|
| “Alternate Offer” |
|
3.9 |
|
|
| “Asset Disposition Offer Amount” |
|
3.5 |
|
|
| “Asset Disposition Offer Period” |
|
3.5 |
|
|
| “Asset Disposition Offer” |
|
3.5 |
|
|
| “Asset Disposition Purchase Date” |
|
3.5 |
|
|
| “Authenticating Agent” |
|
2.2 |
41
|
|
|
| Term |
|
Defined in Section |
|
|
| “Cash Consideration” |
|
3.5 |
|
|
| “Change of Control Offer” |
|
3.9 |
|
|
| “Change of Control Payment” |
|
3.9 |
|
|
| “Change of Control Payment Date” |
|
3.9 |
|
|
| “Clearstream” |
|
2.1(b) |
|
|
| “Company Order” |
|
2.2 |
|
|
| “covenant defeasance option” |
|
8.1(b) |
|
|
| “Covenant Termination Date” |
|
3.20 |
|
|
| “Defaulted Interest” |
|
2.14 |
|
|
| “Euroclear” |
|
2.1(b) |
|
|
| “Event of Default” |
|
6.1 |
|
|
| “Excess Proceeds” |
|
3.5 |
|
|
| “Exchange Global Note” |
|
2.1(b) |
|
|
| “Global Securities” |
|
2.1(b) |
|
|
| “Initial Lien” |
|
3.6 |
|
|
| “Institutional Accredited Investor Global Notes” |
|
2.1(b) |
|
|
| “Institutional Accredited Investor Notes” |
|
2.1(b) |
|
|
| “legal defeasance option” |
|
8.1(b) |
|
|
| “Legal Holiday” |
|
12.8 |
|
|
| “Paying Agent” |
|
2.3 |
|
|
| “Payment Default” |
|
6.1(6)(a) |
|
|
| “Permitted Debt” |
|
3.2 |
|
|
| “protected purchaser” |
|
2.10 |
|
|
| “Registrar” |
|
2.3 |
42
|
|
|
| Term |
|
Defined in Section |
|
|
| “Regulation S Global Note” |
|
2.1(b) |
|
|
| “Regulation S Notes” |
|
2.1(b) |
|
|
| “Resale Restriction Termination Date” |
|
2.6(b) |
|
|
| “Restricted Payment” |
|
3.3 |
|
|
| “Restricted Period” |
|
2.1(b) |
|
|
| “Rule 144A Global Note” |
|
2.1(b) |
|
|
| “Rule 144A Notes” |
|
2.1(b) |
|
|
| “Securities Register” |
|
2.3 |
|
|
| “Special Interest Payment Date” |
|
2.14(a) |
|
|
| “Special Record Date” |
|
2.14(a) |
|
|
| “Successor Company” |
|
4.1 |
|
|
| “Successor Guarantor” |
|
4.1 |
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. This Indenture is subject to the
mandatory provisions of the TIA respecting an indenture qualified thereunder, and such provisions are incorporated by reference in and made a part of this Indenture. The following TIA terms have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities and the Guarantees.
“indenture security holder” means a Securityholder.
“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 indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined in the TIA by reference to
another statute or defined by SEC rule have the meanings assigned to them by such definitions.
43
SECTION 1.4. 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) “including” means including without limitation;
(5) words in the singular include the plural and words in the plural include the singular;
(6) all amounts expressed in this Indenture or in any of the Securities in terms of money refer to the lawful currency of the
United States of America;
(7) when expressed as a command, the words “will” and “shall” have the same
meaning; and
(8) the words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
ARTICLE II
THE SECURITIES
SECTION 2.1.
Form, Dating and Terms.
(a) The aggregate principal amount of Securities that may be authenticated and delivered under this
Indenture is unlimited. The Initial Securities issued on the date hereof shall be in an aggregate principal amount of $500,000,000. In addition, the Company may issue, from time to time in accordance with the provisions of this Indenture, Additional
Securities (as provided herein) and Exchange Securities. Furthermore, Securities may be authenticated and delivered upon registration of transfer, exchange or in lieu of, other Securities pursuant to Section 2.2, 2.6, 2.10, 2.12, 5.8 or 9.5, in
connection with an Asset Disposition Offer pursuant to Section 3.5 or in connection with a Change of Control Offer or Alternate Offer pursuant to Section 3.9.
The Initial Securities shall be known and designated as “8.000% Senior Notes, Series A, due 2023” of the Company. Additional
Securities issued as Restricted Securities shall be known and designated as “8.000% Senior Notes, Series A, due 2023” of the Company. Additional Securities issued other than as Restricted Securities shall be known and designated as
“8.000% Senior Notes, Series B, due 2023” of the Company, and Exchange Securities shall be known and designated as “8.000% Senior Notes, Series B, due 2023” of the Company.
44
With respect to any Additional Securities, the Company shall set forth in (a) a Board
Resolution and (b) (i) an Officers’ Certificate or (ii) one or more indentures supplemental hereto, the following information:
(1) the aggregate principal amount of such Additional Securities to be authenticated and delivered pursuant to this Indenture;
(2) the issue price and the issue date of such Additional Securities, including the date from which interest shall accrue;
and
(3) whether such Additional Securities shall be Restricted Securities issued in the form of Exhibit A hereto and/or
shall be issued in the form of Exhibit B hereto.
If any Additional Securities are not fungible with the Initial Securities for U.S.
Federal income tax purposes, such Additional Securities shall have a different CUSIP number and ISIN from the Initial Notes.
In
authenticating and delivering Additional Securities, the Trustee shall be entitled to receive and shall be fully protected in conclusively relying upon, in addition to the Opinion of Counsel and Officers’ Certificate required by
Section 12.4, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability (subject to customary exceptions) of such Additional Securities.
The Initial Securities, the Additional Securities and the Exchange Securities shall be considered collectively as a single class for all
purposes of this Indenture. Holders of the Initial Securities, the Additional Securities and the Exchange Securities will vote and consent together on all matters to which such Holders are entitled to vote or consent as one class, and none of the
Holders of the Initial Securities, the Additional Securities or the Exchange Securities shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent.
If any of the terms of any Additional Securities are established by action taken pursuant to Board Resolutions of the Company, a copy of an
appropriate record of such action shall be certified by the Secretary or any Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate or the indenture supplemental hereto setting
forth the terms of the Additional Securities.
(b) The Initial Securities are being offered and sold by the Company pursuant to a Purchase
Agreement, dated March 25, 2015, among the Company, the Subsidiary Guarantors and the Initial Purchasers. The Initial Securities and any Additional Securities (if issued as Restricted Securities) (the “Additional Restricted
Securities”) shall be resold initially only to (A) QIBs in reliance on Rule 144A and (B) Non-U.S. Persons in reliance on Regulation S. Such Initial Securities and Additional Restricted Securities may thereafter be transferred to,
among others, QIBs, purchasers in reliance on Regulation S and IAIs in accordance with Rule 501 of the Securities Act, in each case, in accordance with the procedure described herein. Additional Securities offered after the date hereof may be
offered and sold by the Company from time to time pursuant to one or more purchase agreements in accordance with applicable law.
45
Initial Securities and Additional Restricted Securities offered and sold to QIBs in the United
States of America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global Security substantially in the form of Exhibit A, which is hereby incorporated by reference and made a part of this
Indenture, including appropriate legends as set forth in Section 2.1(d) (the “Rule 144A Global Note”), deposited with the Trustee, as Securities Custodian, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of
the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as Securities Custodian, as hereinafter provided.
Initial Securities and any Additional Restricted Securities offered and sold outside the United States of America (the
“Regulation S Notes”) in reliance on Regulation S shall initially be issued in the form of a permanent global Security, without interest coupons, substantially in the form of Exhibit A including appropriate legends as set forth
in Section 2.1(d) (the “Regulation S Global Note”) deposited upon issuance with, or on behalf of, the Trustee as Securities Custodian in the manner described in this Article II for credit to the respective accounts of the
purchasers (or to such other accounts as they may direct) at Euroclear Bank S.A./N.V. (“Euroclear”) or Clearstream Banking, société anonyme (“Clearstream”). Prior to the 40th day after the later of the
commencement of the offering of the Initial Securities and the Issue Date (such period through and including such 40th day, the “Restricted Period”), interests in the Regulation S Global Note may only be held through Euroclear and
Clearstream, and may only be transferred to Non-U.S. Persons pursuant to Regulation S, unless exchanged for interests in another Global Security in accordance with the transfer and certification requirements described herein.
Investors may hold their interests in the Regulation S Global Note after the Restricted Period through organizations other than Euroclear or
Clearstream that are participants in DTC’s system or directly through Euroclear or Clearstream, if they are participants in such systems, or indirectly through organizations which are participants in such systems. If such interests are held
through Euroclear or Clearstream, Euroclear and Clearstream shall hold such interests in the applicable Regulation S Global Note on behalf of their participants through customers’ securities accounts in their respective names on the books of
their respective depositaries. Such depositaries, in turn, shall hold such interests in the applicable Regulation S Global Note in customers’ securities accounts in the depositaries’ names on the books of DTC.
The Regulation S Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Initial Securities and Additional Restricted Securities resold to IAIs (the “Institutional
Accredited Investor Notes”) in the United States of America shall be issued in the form of a permanent global Security substantially in the form of Exhibit A including appropriate legends as set forth in Section 2.1(d) (the
“Institutional Accredited Investor Global Note”) deposited with
46
the Trustee, as Securities Custodian, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Institutional Accredited Investor Global Note may be represented
by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Institutional Accredited Investor Global Note may from time to
time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Exchange Securities exchanged for interests in the Rule 144A Notes, the Regulation S Notes and the Institutional Accredited Investor Notes
shall be issued in the form of a permanent global Security, substantially in the form of Exhibit B, which is hereby incorporated by reference and made a part of this Indenture, deposited with the Trustee as hereinafter provided, including the
appropriate legend set forth in Section 2.1(d) (the “Exchange Global Note”). The Exchange Global Note shall be deposited upon issuance with, or on behalf of, the Trustee as Securities Custodian, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Exchange Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate.
The Rule 144A Global Note, the Regulation S Global Note, the Institutional Accredited Investor Global Note and the Exchange Global Note are
sometimes collectively herein referred to as the “Global Securities.”
The principal of and interest (including
Additional Interest, if any) on the Securities shall be payable at the office or agency of the Company maintained for such purpose in The City of New York, and at such other office or agency of the Company as may be maintained for such purpose
pursuant to Section 2.3; provided, however, that, at the option of the Company, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the
Securities Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Securities represented by a Global Security (including
principal and interest) will be made by wire transfer of immediately available funds to the accounts specified by DTC. At the Company’s option, payments in respect of Securities represented by Definitive Securities (including principal and
interest) may be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if the Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage, in addition to those set forth on
Exhibit A and Exhibit B and in Section 2.1(d). The Company shall approve any notation, endorsement or legend on the Securities. Each Security shall be dated the date of its authentication, and the Trustee’s certificate of authentication
shall be substantially in the form set forth in each of Exhibit A and Exhibit B. The terms of the Securities set forth in Exhibit A and Exhibit B are part of the terms of this Indenture and, to the extent applicable, the Company, the Subsidiary
Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to be bound by such terms.
47
(c) Denominations. The Securities shall be issuable only in fully registered form, without
coupons, and only in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
(d) Restrictive Legends.
Unless and until (i) an Initial Security or an Additional Security issued as a Restricted Security is sold under an effective registration statement or (ii) an Initial Security or an Additional Security issued as a Restricted Security is
exchanged for an Exchange Security in connection with an effective registration statement, in each case pursuant to a Registration Rights Agreement or a similar agreement:
(1) the Rule 144A Global Note, the Regulation S Global Note and the Institutional Accredited Investor Global Note shall bear
the following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) THAT IS ONE YEAR (IN THE CASE OF RULE 144A SECURITIES) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL SECURITIES AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) OR 40 DAYS (IN THE CASE OF REGULATION S SECURITIES) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY
ADDITIONAL SECURITIES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
(“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
48
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION, AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS
ACQUISITION HEREOF (IN THE CASE OF REGULATION S SECURITIES), THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT.
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED (“ERISA”), ANY PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE,
LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR
ARRANGEMENT, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
49
(2) Each Global Security, whether or not an Initial Security, shall bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, 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 DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
(e) Book-Entry Provisions.
(i) This Section 2.1(e) shall apply only to Global Securities deposited with the Trustee, as Securities Custodian.
(ii) Each Global Security initially shall (x) be registered in the name of Cede & Co. as the nominee of DTC,
(y) be delivered to the Trustee as Securities Custodian and (z) bear legends as set forth in Section 2.1(d). Transfers of a Global Security (but not a beneficial interest therein) will be limited to transfers thereof in whole, but not
in part, to the Depositary, its successors or their respective nominees, except as set forth in Section 2.1(e)(v) and 2.1(f). If a beneficial interest in a Global Security is transferred or exchanged for a beneficial interest in another Global
Security, the Trustee will (x) record a decrease in the principal amount of the Global Security being transferred or exchanged equal to the principal amount of such transfer or exchange and (y) record a like increase in the principal
amount of the other Global Security. Any beneficial interest in one Global Security that is transferred to a Person who takes delivery in the form of an interest in another Global Security, or exchanged for an interest in another Global Security,
will, upon transfer or exchange, cease to be an interest in such Global Security and become an interest in the other Global Security and, accordingly, will thereafter be subject to all transfer and exchange restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Security for as long as it remains such an interest.
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(iii) Members of, or participants in, DTC (“Agent Members”)
shall have no rights under this Indenture with respect to any Global Security held on their behalf by DTC or by the Trustee as the Securities Custodian or under such Global Security, and DTC may be treated by the Company, the Subsidiary Guarantors,
the Trustee and any agent of the Company, the Subsidiary Guarantors or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Subsidiary
Guarantors, the Trustee or any agent of the Company, the Subsidiary Guarantors or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent Members, the
operation of customary practices of DTC governing the exercise of the rights of a Holder of a beneficial interest in any Global Security.
(iv) In connection with any transfer of a portion of the beneficial interest in a Global Security pursuant to
Section 2.1(f) to beneficial owners who are required to hold Definitive Securities, the Securities Custodian shall reflect on its books and records the date and a decrease in the principal amount of such Global Security in an amount equal to
the principal amount of the beneficial interest in the Global Security to be transferred, and the Company shall execute, and the Trustee shall authenticate and make available for delivery, one or more Definitive Securities of like tenor and amount.
(v) In connection with the transfer of an entire Global Security to beneficial owners pursuant to Section 2.1(f),
such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and make available for delivery, to each beneficial owner identified by DTC in exchange for its
beneficial interest in such Global Security, an equal aggregate principal amount of Definitive Securities of authorized denominations.
(vi) The registered Holder of a Global Security may grant proxies and otherwise authorize any person, including Agent Members
and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities.
(vii) Any Holder of a Global Security shall, by acceptance of such Global Security, agree that transfers of beneficial
interests in such Global Security may be effected only through a book-entry system maintained by (a) the Holder of such Global Security (or its agent) or (b) any holder of a beneficial interest in such Global Security, and that ownership
of a beneficial interest in such Global Security shall be required to be reflected in a book entry.
(f) Definitive Securities.
(i) Except as provided below, owners of beneficial interests in Global Securities will not be entitled to receive
Definitive Securities. If required to do so pursuant to any applicable law or regulation, beneficial owners may obtain Definitive Securities in exchange for their beneficial interests in a Global Security upon written request in accordance with
DTC’s and the Registrar’s procedures. In addition, Definitive
51
Securities shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Security if (A) DTC notifies the Company that it is unwilling or unable to
continue as depositary for such Global Security or DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor depositary is not
appointed by the Company within 90 days of such notice, (B) subject to DTC’s rules, the Company, at its option, delivers to the Trustee and Registrar written notice stating that such Global Security shall be so exchangeable or (C) an
Event of Default has occurred and is continuing and DTC notifies the Company and the Trustee of DTC’s decision to exchange such Global Security for Definitive Securities. In the event of the occurrence of any of the events specified in the
preceding sentence or in clause (A), (B) or (C) of the preceding sentence, Definitive Securities delivered in exchange for any Global Note or beneficial interests therein will be registered in the names, and issued in any approved
denominations, requested by or on behalf of DTC (in accordance with its customary procedures).
(ii) Any Definitive
Security delivered in exchange for an interest in a Global Security pursuant to Section 2.1(e)(iv) or (f) shall, except as otherwise provided by Section 2.6(d), bear the Restricted Securities Legend.
(iii) If a Definitive Security is transferred or exchanged for a beneficial interest in a Global Security, the Trustee will
(x) cancel such Definitive Security, (y) record an increase in the principal amount of such Global Security equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or exchange involves less
than the entire principal amount of the canceled Definitive Security, the Company shall execute, and the Trustee shall authenticate and make available for delivery, to the transferring Holder a new Definitive Security representing the principal
amount not so transferred.
(iv) If a Definitive Security is transferred or exchanged for another Definitive Security,
(x) the Trustee will cancel the Definitive Security being transferred or exchanged, (y) the Company shall execute, and the Trustee shall authenticate and make available for delivery, one or more new Definitive Securities in authorized
denominations having an aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Definitive Security (in the case of an exchange), registered in
the name of such transferee or Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the canceled Definitive Security, the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder thereof, one or more Definitive Securities in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Definitive Securities, registered
in the name of the Holder thereof.
SECTION 2.2. Execution and Authentication. One Officer shall sign the Securities for the
Company by manual or facsimile signature. If the 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.
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A Security shall not be valid until an authorized signatory of the Trustee manually authenticates
the Security. The signature of the Trustee on a Security shall be conclusive evidence that such Security has been duly and validly authenticated and issued under this Indenture. A Security shall be dated the date of its authentication.
At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for
delivery: (1) Initial Securities for original issue on the Issue Date in an aggregate principal amount of $500,000,000, (2) subject to the terms of this Indenture, Additional Securities for original issue in an unlimited principal amount,
(3) Exchange Securities for issue only in an exchange offer pursuant to a Registration Rights Agreement or upon resale under an effective Shelf Registration Statement, and only in exchange for Initial Securities or Additional Securities of an
equal principal amount and (4) when sold in connection with an effective registration statement, Initial Securities in the form of an Unrestricted Global Note, in each case upon a written order of the Company signed by one Officer of the
Company (the “Company Order”). Such Company Order shall specify whether the Securities will be in the form of Definitive Securities or Global Securities, the amount of the Securities to be authenticated and the date on which the
original issue of Securities is to be authenticated and whether the Securities are to be Initial Securities, Additional Securities or Exchange Securities.
The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the Company to authenticate the
Securities. Any such instrument shall be evidenced by an instrument signed by a Trust Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. An Authenticating Agent has the same rights as any Registrar, Paying Agent or agent for
service of notices and demands.
In case the Company, (i) pursuant to Article IV, shall be consolidated or merged with or into any
other Person or shall convey, transfer, lease or otherwise dispose of all or substantially all of its assets in one or more transactions to any Person, or (ii) effects a Qualified Spin Transaction in accordance with the definition of such term
or agreements reasonably satisfactory to the Trustee pursuant to definition of “Qualified Spin Transaction,” as applicable, and the Successor Company shall have executed an indenture supplemental hereto with the Trustee pursuant to Article
IV or agreements reasonably satisfactory to the Trustee pursuant to definition of “Qualified Spin Transaction,” as applicable, any of the Securities authenticated or delivered prior to such transaction may, from time to time, at the
request of the Successor Company, be exchanged for other Securities executed in the name of the Successor Company, with such changes in phraseology and form as may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee, upon Company Order of the Successor Company, shall authenticate and make available for delivery Securities as specified in such order for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a Successor Company pursuant to this Section 2.2 in exchange or substitution for or upon registration of transfer of any Securities, such Successor Company, at the
option of the Holders but without expense to them, shall provide for the exchange of all Securities at the time outstanding for Securities authenticated and delivered in such new name.
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SECTION 2.3. Registrar and Paying Agent. The Company shall maintain in the continental
United States an office or agency where Securities may be presented for registration of transfer or for exchange (the “Registrar”), and the Company shall maintain in New York, New York 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 “Securities Register”). The Company or any of its Restricted Subsidiaries may
act as Registrar or Paying Agent. 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 and the term “Registrar” includes any
co-registrar.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent 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 each such agent. 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 7.7.
The Company initially appoints the Trustee as Registrar and as Paying Agent for the Securities at its corporate trust office in New York, New
York, which, on the date hereof, is located at 150 East 42nd Street, 40th Floor, in New York, New York, 10017. The Company may remove any Registrar or Paying Agent upon written notice to such
Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the
Company and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in
accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Company and the Trustee.
SECTION 2.4. Paying Agent to Hold Money in Trust. By no later than 11:00 a.m. (New York City time) on the date on which any principal
or interest on any Security is due and payable, the Company shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal or interest when due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money held by such Paying Agent for the payment of principal or interest on the Securities (whether such assets have been
distributed to it by the Company or other obligors on the Securities), shall notify the Trustee in writing of any default by the Company or any Subsidiary Guarantor in making any such payment and shall during the continuance of any default by the
Company (or any other obligor upon the Securities) in the making of any payment in respect of the Securities, upon the written request of the Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities together with a full accounting thereof. If the Company or a Restricted Subsidiary of the Company 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 (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds or assets disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying Agent (if
other than the Company or a Restricted Subsidiary of the Company) shall
54
have no further liability for the money delivered to the Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying Agent
for the Securities.
SECTION 2.5. Securityholder 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 Securityholders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, or to the extent otherwise required under the TIA, the Company, on
its own behalf and on behalf of each of the Subsidiary Guarantors, shall furnish or cause the Registrar to 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 Securityholders and the Company shall otherwise comply with TIA § 312(a).
SECTION 2.6. Transfer and Exchange.
(a) A Holder may transfer a Security (or a beneficial interest therein) to another Person or exchange a Security (or a beneficial interest
therein) for another Security or Securities of any authorized denomination by presenting to the Trustee a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion
or other document required by this Section 2.6. The Trustee shall promptly register any transfer or exchange that meets the requirements of this Section 2.6 by noting the same in the register maintained by the Trustee for the purpose, and
no transfer or exchange shall be effective until it is registered in such register. The transfer or exchange of any Security (or a beneficial interest therein) may only be made in accordance with this Section 2.6 and Sections 2.1(e) and 2.1(f),
as applicable, and, in the case of a Global Security (or a beneficial interest therein), the applicable rules and procedures of DTC, Euroclear and Clearstream. The Trustee shall refuse to register any requested transfer or exchange that does not
comply with this paragraph.
(b) Transfers of Rule 144A Notes and Institutional Accredited Investor Notes. The following provisions
shall apply with respect to any proposed registration of transfer of a Rule 144A Note or an Institutional Accredited Investor Note prior to the date which is one year after the later of the date of its original issue and the last date on which the
Company or any Affiliate of Company was the owner of such Securities (or any predecessor thereto) (the “Resale Restriction Termination Date”):
(i) a registration of transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a beneficial interest
therein to a QIB shall be made upon the representation of the transferee in the form as set forth on the reverse of the Security that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion
and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from
registration provided by
55
Rule 144A; provided that no such written representation or other written certification shall be required in connection with the transfer of a beneficial interest in the Rule 144A Global
Note to a transferee in the form of a beneficial interest in that Rule 144A Global Note in accordance with this Indenture and the applicable procedures of DTC.
(ii) a registration of transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a beneficial interest
therein to an IAI shall be made upon receipt by the Trustee or its agent of a certificate substantially in the form set forth in Section 2.8 from the proposed transferee and, if requested by the Company, the delivery of an Opinion of Counsel,
certification and/or other information satisfactory to it; and
(iii) a registration of transfer of a Rule 144A Note or an
Institutional Accredited Investor Note or a beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Trustee or its agent of a certificate substantially in the form set forth in Section 2.9 from the proposed transferee
and, if requested by the Company, the delivery of an Opinion of Counsel, certification and/or other information satisfactory to it.
(c)
Transfers of Regulations S Notes. The following provisions shall apply with respect to any proposed transfer of a Regulation S Note prior to the expiration of the Restricted Period:
(i) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall be made upon the representation of the
transferee, in the form of assignment on the reverse of the certificate, that it is purchasing the Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a
“qualified institutional buyer” within the meaning of Rule 144A, is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial interest therein to an IAI shall be made upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in Section 2.8 from the proposed transferee and, if requested by the Company or the Trustee, the delivery of an Opinion of Counsel, certification and/or other information
satisfactory to each of them; and
(iii) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a certificate substantially in the form set forth in Section 2.9 hereof from the proposed transferee and, if requested by the Company, receipt by the Trustee or its agent of an
Opinion of Counsel, certification and/or other information satisfactory to the Company.
56
After the expiration of the Restricted Period, interests in the Regulation S Note may be
transferred in accordance with applicable law without requiring the certification set forth in Section 2.8, Section 2.9 or any additional certification.
(d) Restricted Securities Legend. Upon the transfer, exchange or replacement of Securities not bearing a Restricted Securities Legend,
the Registrar shall deliver Securities that do not bear a Restricted Securities Legend. Upon the transfer, exchange or replacement of Securities bearing a Restricted Securities Legend, the Registrar shall deliver only Securities that bear a
Restricted Securities Legend unless (i) Initial Securities are being exchanged for Exchange Securities in an exchange offer pursuant to a Registration Rights Agreement, in which case the Exchange Securities shall not bear a Restricted
Securities Legend, (ii) an Initial Security is being transferred pursuant to a Shelf Registration Statement or other effective registration statement or (iii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. Any Additional Securities sold in a
registered offering shall not be required to bear the Restricted Securities Legend.
(e) [Reserved].
(f) Retention of Written Communications. The Registrar shall retain copies of all letters, notices and other written communications
received pursuant to Section 2.1 or this Section 2.6. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable prior
written notice to the Registrar.
(g) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the Company shall, subject to the other terms and conditions of this
Article II, execute and the Trustee shall authenticate Definitive Securities and Global Securities at the Registrar’s request.
(ii) No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require the
Holder to pay a sum sufficient to cover any transfer tax assessments or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer
pursuant to Section 2.2, 2.10, 2.12, 3.5, 3.9, 5.8 or 9.5).
(iii) The Company (and the Registrar) shall not be
required to register the transfer of or exchange of any Security (A) for a period (1) of 15 days before giving any notice of redemption of Securities or (2) beginning 15 days before an interest payment date and ending on such interest
payment date or (B) selected for redemption, except the unredeemed portion of any Security being redeemed in part.
(iv) Prior to the due presentation for registration of transfer of any Security, the Company, any Subsidiary Guarantor, the
Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Security is registered as the owner of
57
such Security for the purpose of receiving payment of principal and (subject to paragraph 2 of the forms of Securities attached hereto as Exhibits A and B) interest on such Security and for all
other purposes whatsoever, including the transfer or exchange of such Security, whether or not such Security is overdue, and none of the Company, any Subsidiary Guarantor, the Trustee, the Paying Agent or the Registrar shall be affected by notice to
the contrary.
(v) Any Definitive Security delivered in exchange for an interest in a Global Security pursuant to
Section 2.1(f) shall, except as otherwise provided by Section 2.6(d), bear the Restricted Securities Legend.
(vi) All Securities issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the Securities surrendered upon such transfer or exchange.
(h) No
Obligation of the Trustee. The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, Agent Member or other Person with respect to the accuracy of the records of DTC or its nominee or of any participant
or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption or purchase)
or the payment of any amount or delivery of any Securities (or other security or property) under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the
Securities shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through DTC
subject to the applicable rules and procedures of DTC. The Trustee may conclusively rely and shall be fully protected in so relying upon information furnished by DTC with respect to its Agent Members and any beneficial owners. The Trustee shall have
no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers
between or among Agent Members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the
terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(i)
Affiliate Holders. By accepting a beneficial interest in a Global Security, any Person that is an Affiliate of the Company agrees to give notice to the Company, the Trustee and the Registrar of the acquisition and its Affiliate status.
SECTION 2.7. [Reserved].
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SECTION 2.8. Form of Certificate to be Delivered in Connection with Transfers to Institutional
Accredited Investors.
[Date]
CONSOL
Energy Inc.
c/o Wells Fargo Bank, National Association
150
East 42nd Street, 40th Floor
New York, New York 10017
Attention: Corporate Trust Services – Administrator for CONSOL Energy Inc.
Wells Fargo Bank – DAPS Reorg.
MAC N9303-121
608 2ND Avenue South
Minneapolis, MN 55479
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: DAPSReorg@wellsfargo.com
Ladies and Gentlemen:
This certificate is delivered to
request a transfer of $[ ] principal amount of the 8.000% Senior Notes due 2023 (the “Securities”) of CONSOL Energy Inc. (the “Company”).
Upon transfer, the Securities would be registered in the name of the new beneficial owner as follows:
The undersigned represents and warrants to you that:
1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933, as amended (the “Securities Act”)) purchasing for our own account or for the account of such an institutional “accredited investor” at least $250,000 principal amount of the Securities, and we are acquiring the
Securities not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk
of our investment in the Securities and we invest in or purchase securities similar to the Securities in the normal course of our business. We and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the Securities Act and, unless so registered, may not be sold except
as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing
59
Securities to offer, sell or otherwise transfer such Securities prior to the date that is one year after the later of the date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Securities (or any predecessor thereto) (the “Resale Restriction Termination Date”) only (a) to the Company or any Subsidiary thereof, (b) pursuant to an effective
registration statement under the Securities Act, (c) in a transaction complying with the requirements of Rule 144A under the Securities Act, to a person we reasonably believe is a “qualified institutional buyer” under Rule 144A of the
Securities Act (a “QIB”) that is purchasing for its own account or for the account of a QIB and to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and sales to non-U.S.
persons that occur outside the United States within the meaning of Regulation S under the Securities Act, (e) to an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is purchasing for its own account or for the account of such an institutional “accredited investor,” in each case in a minimum principal amount of Securities of $250,000 for investment purposes and not with a view to or
for offer or sale in connection with any distribution in violation of the Securities Act or (f) pursuant to any other available exemption from the registration requirements of the Securities Act, subject in each of the foregoing cases to any
requirement of law that the disposition of our property or the property of such investor account or accounts be at all times within our or their control and in compliance with any applicable state securities laws. The foregoing restrictions on
resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Securities is proposed to be made pursuant to clause (e) above prior to the Resale Restriction Termination Date, the transferor
shall deliver a letter from the transferee substantially in the form of this letter to the Company and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” (within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and that it is acquiring such Securities for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the
Trustee reserve the right prior to any offer, sale or other transfer prior to the Resale Termination Date of the Securities pursuant to clauses (d), (e) or (f) above to require the delivery of an Opinion of Counsel, certifications and/or
other information satisfactory to the Company and the Trustee.
3. We [are][are not] an Affiliate of the Company.
SECTION 2.9. Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation
S.
[Date]
CONSOL Energy Inc.
c/o Wells Fargo Bank, National Association
150 East 42nd Street,
40th Floor
New York, New York 10017
Attention: Corporate Trust Services – Administrator for CONSOL Energy Inc.
60
Wells Fargo Bank – DAPS Reorg.
MAC N9303-121
608
2ND Avenue South
Minneapolis, MN 55479
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: DAPSReorg@wellsfargo.com
| Re: |
CONSOL Energy Inc. (the “Company”) |
8.000% Senior Notes due 2023 (the
“Securities”)
Ladies and Gentlemen:
In connection with our proposed sale of $[ ] aggregate principal amount of the Securities, we
confirm that such sale has been effected pursuant to and in accordance with Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:
(a) the offer of the Securities was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling
efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of
Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1), as the case may be.
We also hereby certify that we [are][are not] an Affiliate of the Company and, to our knowledge, the transferee of the Securities [is][is not]
an Affiliate of the Company.
You and the Company are entitled to rely conclusively upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
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Very truly yours, |
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[Name of Transferor] |
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By: |
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Authorized Signatory |
SECTION 2.10. Mutilated, Destroyed, Lost or Stolen 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, such that the Securityholder (a) satisfies the Company or the Trustee that such Security has been lost, destroyed or wrongfully taken within a reasonable time after such Securityholder has notice of such loss,
destruction or wrongful taking and the Registrar has not registered a transfer prior to receiving such notification, (b) makes such request to the Company or Trustee prior to the Security being acquired by a protected purchaser as defined in
Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and (c) satisfies any other reasonable requirements of the Trustee; provided, however, if after the delivery of such replacement
Security, a protected purchaser of the Security for which such replacement Security was issued presents for payment or registration such replaced Security, the Trustee or the Company shall be entitled to recover such replacement Security from the
Person to whom it was issued and delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by
the Company or the Trustee in connection therewith. 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 and the Registrar from any loss which any
of them may suffer if a Security is replaced, and, in the absence of notice to the Company, any Subsidiary Guarantor or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute, and upon receipt of a
Company Order the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or wrongfully taken Security, a new Security of like tenor and principal amount, bearing
a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or wrongfully taken Security has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the
issuance of any new Security under this Section 2.10, the Company may require that such Holder pay a sum sufficient to cover any transfer tax or other governmental charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of counsel and of the Trustee) in connection therewith.
Subject to the proviso in the initial paragraph of this
Section 2.10, every new Security issued pursuant to this Section in lieu of any mutilated, destroyed, lost or wrongfully taken Security shall constitute an original additional contractual obligation of the Company, any
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Subsidiary Guarantor and any other obligor upon the Securities, whether or not the mutilated, destroyed, lost or wrongfully taken Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.
The
provisions of this Section 2.10 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.11. Outstanding Securities. Securities outstanding at any time are all Securities authenticated by the Trustee except for
those cancelled by it, those delivered to it for cancellation, those paid pursuant to Section 2.10 and those described in this Section as not outstanding. A Security does not cease to be outstanding in the event the Company or an Affiliate of
the Company holds the Security; provided, however, that (i) for purposes of determining which are outstanding for consent or voting purposes hereunder, the provisions of Section 12.6 shall apply and (ii) in determining
whether the Trustee shall be fully protected in making a determination whether the Holders of the requisite principal amount of outstanding Securities are present at a meeting of Holders of Securities for quorum purposes or have consented to or
voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Securities which a Trust Officer of the Trustee actually knows to
be held by the Company or an Affiliate of the Company shall not be considered outstanding.
If a Security is replaced pursuant to
Section 2.10 (other than a mutilated Security surrendered for replacement), it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a protected purchaser. A
mutilated Security ceases to be outstanding upon surrender of such Security and replacement pursuant to Section 2.10.
If the Paying
Agent segregates and holds in trust, in accordance with this Indenture, by 11:00 a.m. (New York City time) on a Redemption Date or other maturity date money sufficient to pay all principal and accrued interest payable on that date with respect to
the Securities (or portions thereof) to be redeemed or otherwise 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 2.12. Temporary Securities. In the event that Definitive Securities are to be issued under the terms of this Indenture, until
such 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, and shall carry all rights, of Definitive Securities but may
have variations that the Company consider appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Definitive Securities. After the preparation of Definitive Securities, the
temporary Securities shall be exchangeable for Definitive Securities upon surrender of the temporary Securities at any office or agency maintained by the Company for that purpose and such exchange shall be without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the Company shall execute, and the Trustee shall authenticate and make available for delivery in
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exchange therefor, one or more Definitive Securities representing an equal principal amount of Securities. Until so exchanged, the Holder of temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as a Holder of Definitive Securities.
SECTION 2.13. Cancellation. The Company at any
time may deliver Securities to the Trustee for cancellation. 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 all Securities surrendered for registration of transfer, exchange, payment or cancellation and dispose of such Securities in accordance with its internal policies and customary procedures (subject to the record retention requirements of the
Exchange Act) or deliver canceled Securities to the Company pursuant to written direction by one Officer of the Company. If the Company or any Subsidiary Guarantor acquires any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.13. The Company may not issue new Securities to replace Securities they have
paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.
At such time as
all beneficial interests in a Global Security have either been exchanged for Definitive Securities, transferred, redeemed, repurchased or canceled, such Global Security shall be returned by DTC or the Securities Custodian to the Trustee for
cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for Definitive Securities, transferred in exchange for an interest in another Global Security,
redeemed, repurchased or canceled, the principal amount of Securities represented by such Global Security shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Securities Custodian for such
Global Security) with respect to such Global Security, by the Trustee or the Securities Custodian, to reflect such reduction.
SECTION
2.14. Payment of Interest; Defaulted Interest. Interest on any Security which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such Security (or one or more
predecessor Securities) is registered at the close of business on the regular record date for such payment at the office or agency of the Company maintained for such purpose pursuant to Section 2.3.
Any interest on any Security which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a
period of 30 days shall forthwith cease to be payable to the Holder on the regular record date, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
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the date of the proposed payment (the “Special Interest Payment Date”), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix a record date (the “Special Record Date”) for the payment of such Defaulted Interest, which date shall be not more than 15 days
and not less than 10 days prior to the Special Interest Payment Date and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee in writing of such Special Record
Date, and in the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for
in Section 12.2, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted
Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Securities (or their respective predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
(c) The Trustee shall not at any time be
under any duty or responsibility to any Holder to determine the Defaulted Interest, or with respect to the nature, extent, or calculation of the amount of Defaulted Interest owed, or with respect to the method employed in such calculation of the
Defaulted Interest.
Subject to the foregoing provisions of this Section 2.14, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.15. Computation of Interest. Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 2.16. CUSIP, Common Code and ISIN Numbers. The Company in issuing the Securities may use “CUSIP”,
“Common Code” and “ISIN” numbers and, if so, the Trustee shall use “CUSIP”, “Common Code” and “ISIN” numbers in notices of redemption or purchase 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 or purchase and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such redemption or purchase shall not be affected by any defect in or omission of such CUSIP, Common Code and ISIN numbers. The Company shall promptly notify the Trustee in writing
of any change in the CUSIP, Common Code and ISIN numbers.
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ARTICLE III
COVENANTS
SECTION 3.1.
Payment of Securities. The Company shall promptly pay the principal and interest (including Additional Interest, if any) on the Securities on the dates and in the manner provided in the Securities and in this Indenture. Principal and interest
(including Additional Interest, if any) shall be considered paid on the date due if by 11:00 a.m. (New York City time) on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and
interest (including Additional Interest, if any) then due.
The Company shall pay interest on overdue principal, and it shall pay interest
on overdue installments of interest (including Additional Interest, if any), at the rate specified in the Securities to the extent lawful.
The Company shall notify the Trustee in writing of the amounts and payment dates of any Additional Interest that may become payable under any
Registration Rights Agreement. The Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine any Additional Interest, or with respect to the nature, extent or calculation of the amount of Additional
Interest owed, or with respect to the method employed in such calculation of Additional Interest.
Notwithstanding anything to the
contrary contained in this Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments hereunder.
SECTION 3.2. Limitation on Indebtedness and Preferred Stock.
The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur, assume, Guarantee or
otherwise become liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness, and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any
Preferred Stock; provided, however, that the Company or a Restricted Subsidiary of the Company may incur Indebtedness, the Company may issue Disqualified Stock and any Restricted Subsidiary of the Company may issue Preferred
Stock if, on the date of such incurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 to 1.0; provided, further, that the amount of Indebtedness that may be incurred and the Preferred Stock
that may be issued pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors shall not exceed at any one time outstanding the greater of (a) $200.0 million and (b) 2.0% of the Company’s ACNTA.
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The limitation described in the preceding paragraph shall not prohibit the incurrence of the
following Indebtedness by the Company or any of its Restricted Subsidiaries or the issuance of Disqualified Stock by the Company or Preferred Stock by any Restricted Subsidiary of the Company (“Permitted Debt”):
(1) Indebtedness of the Company or any of its Restricted Subsidiaries (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) under one or more Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) not exceeding the
greater of (a) $2.5 billion and (b) the sum of $500.0 million plus 30.0% of the Company’s ACNTA as of the date of such incurrence;
(2) Indebtedness owed to and Preferred Stock issued to and, in each case, held by the Company or any of its Restricted
Subsidiaries; provided that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary of the Company or any subsequent transfer of such Indebtedness or
Preferred Stock (other than to the Company or another Restricted Subsidiary of the Company) shall be deemed, in each case, to constitute the incurrence of such Indebtedness or the issuance of such Preferred Stock not permitted by this clause (2);
(3) the Securities (other than any Additional Securities), the Subsidiary Guarantees related thereto, the Exchange
Securities and any Exchange Guarantees related thereto;
(4) Indebtedness outstanding on the Issue Date (other than
Indebtedness described in clauses (1), (2) and (3) of this paragraph);
(5) Refinancing Indebtedness in respect
of Indebtedness incurred by the Company or any of its Restricted Subsidiaries in exchange for, or the net proceeds of which are used to Refinance any Indebtedness (other than intercompany Indebtedness), Disqualified Stock or Preferred Stock, as
applicable, that was permitted by this Indenture to be incurred or issued pursuant to the first paragraph of this covenant or pursuant to clauses (3) and (4) of this paragraph and this clause (5);
(6) Indebtedness represented by Capital Lease Obligations, mortgage financings, purchase money obligations or other
Indebtedness, in each case incurred for the purpose of financing all or any part of the price or cost of design, construction, installation, development, repair or improvement of plant, property or equipment used in the business of the Company or
any of its Restricted Subsidiaries, and Refinancing Indebtedness thereof, in an aggregate principal amount, when taken together with the outstanding amount of all other Indebtedness or Refinancing Indebtedness incurred pursuant to this clause (6),
not to exceed at any time outstanding under this clause (6) the greater of (a) $500.0 million and (b) 5.0% of the Company’s ACNTA at the time of any incurrences under this clause (6);
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(7) Guarantees by the Company or a Restricted Subsidiary of the Company of
any Indebtedness of the Company or any Restricted Subsidiary of the Company that is permitted to be incurred by another provision of this covenant and could have been incurred (in compliance with this covenant) by the Person so Guaranteeing such
Indebtedness; provided, however, that if the Indebtedness being Guaranteed is subordinated to or pari passu with the Securities, then the Subsidiary Guarantee must be subordinated or pari passu, as applicable, to the same
extent as the Indebtedness Guaranteed;
(8) Indebtedness under Hedging Contracts, Interest Rate Agreements and
Currency Agreements entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business and not for speculation;
(9) Indebtedness in respect of self-insurance obligations or bid, plugging and abandonment, appeal, reimbursement, performance,
surety and similar obligations and completion guarantees provided by or for the account of the Company or any Restricted Subsidiary of the Company in the ordinary course of business, and any Guarantees and letters of credit functioning as or
supporting any of the foregoing in the ordinary course of business;
(10) Permitted Marketing Obligations;
(11) in-kind obligations relating to oil or natural gas balancing positions arising in the ordinary course of business;
(12) Indebtedness under the Existing Receivables Financing and any other Indebtedness of a Receivables Subsidiary incurred in a
Qualified Receivables Transaction;
(13) liability in respect of the Indebtedness of any Unrestricted Subsidiary of
the Company or any Joint Venture but only to the extent that such liability is the result of (a) the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as
Guarantor of such Indebtedness, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (13) and then outstanding does not exceed $25.0 million, or
(b) the pledge of (or a Guarantee limited in recourse solely to) Equity Interests in such Unrestricted Subsidiary or Joint Venture held by the Company or such Restricted Subsidiary to secure such Indebtedness and solely to the extent such
Indebtedness constitutes Non-Recourse Debt;
(14) Permitted Acquisition Indebtedness;
(15) Indebtedness of the Company or any Restricted Subsidiary of the Company or the issuance of any Disqualified Stock by the
Company or Preferred Stock by any Restricted Subsidiary in an aggregate amount not exceeding, at any one time outstanding, including any Refinancing Indebtedness thereof, the greater of (i) $500.0 million and (ii) 5.0% of the
Company’s ACNTA at the time of any incurrence under this clause (15).
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In the event that an item of Indebtedness meets the criteria of more than one of the
categories of Indebtedness described in clauses (1) through (15) of the preceding paragraph or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company shall, in its sole discretion, divide, classify or
reclassify (or later divide, classify, redivide or reclassify) such item of Indebtedness in any manner that complies with this covenant (including splitting into multiple exceptions) and will only be required to include the amount and type of such
Indebtedness in one of such clauses of the preceding paragraph or pursuant to the first paragraph of this covenant; provided that Indebtedness of the Company and any of its Restricted Subsidiaries outstanding under the Credit Agreement as of
the Issue Date shall initially be deemed to have been incurred pursuant to clause (1) of the preceding paragraph.
The
accrual of interest or Preferred Stock or Disqualified Stock dividends or distributions, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same
terms, the reclassification of Preferred Stock or Disqualified Stock as Indebtedness due to a change in accounting principles, and the payment of dividends or distributions on Preferred Stock or Disqualified Stock in the form of additional
securities of the same class of Preferred Stock or Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Preferred Stock or Disqualified Stock for purposes of this covenant; provided that the amount
thereof shall be included in the calculation Consolidated Interest Expense of the Company as accrued to the extent required by the definition of such term.
SECTION 3.3. Limitation on Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, make a Restricted Payment if at the time the Company or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default (other than a Reporting Default) shall have occurred and be continuing (or would result therefrom);
(2) the Company is not able to incur an additional $1.00 of Indebtedness pursuant to the Consolidated Coverage Ratio test in
Section 3.2; or
(3) the aggregate amount of such Restricted Payment and all other Restricted Payments since
January 1, 2010 (excluding Restricted Payments permitted by clauses (2) through (10) and clauses (12) and (13) of the second paragraph of this Section 3.3) would exceed the sum of (without duplication):
(a) 50% of the cumulative Consolidated Net Income of the Company for the period commencing on January 1, 2010 and ending
on the last day of the fiscal quarter ending on or immediately preceding the date of such proposed Restricted Payment (or, if such aggregate Consolidated Net Income shall be a deficit, minus 100% of such deficit);
(b) the aggregate Net Cash Proceeds and the Fair Market Value of property or securities other than cash received (including
Equity Interests of Persons other than the Company or a Subsidiary of the Company, engaged primarily in the Permitted Business or assets used or useful in the Permitted
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Business) in each case by the Company since January 1, 2010 as a contribution to its common equity capital or from the issuance or sale of its Equity Interests (other than Disqualified Stock
and Net Cash Proceeds received from an issuance or sale of such Equity Interests to a Subsidiary of the Company or an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan, option
plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary of the Company (unless such loans have been repaid with cash on or prior to the date of determination));
(c) the amount by which Indebtedness of the Company or its Restricted Subsidiaries is reduced on the Company’s balance
sheet upon the conversion or exchange (other than by a Subsidiary of the Company) subsequent to January 1, 2010 of any Indebtedness of the Company or its Restricted Subsidiaries convertible or exchangeable for Equity Interests (other than
Disqualified Stock) of the Company (less the amount of any cash, or the Fair Market Value of any other property, distributed by the Company upon such conversion or exchange), together with the net proceeds, if any, received by the Company or any of
its Restricted Subsidiaries upon such conversion or exchange;
(d) to the extent not already included in Consolidated Net
Income for such period, if any Restricted Investment is that was made by the Company or any of its Restricted Subsidiaries after January 1, 2010 is sold for cash (other than to the Company or any Subsidiary of the Company) or otherwise
cancelled, liquidated, released or repaid for cash, the cash return or other reduction with respect to such Restricted Investment resulting from such sale, cancellation, liquidation, release or repayment;
(e) the extent that any Unrestricted Subsidiary of the Company or a Restricted Subsidiary of the Company designated as such
after January 1, 2010 is redesignated as a Restricted Subsidiary pursuant to the terms of this Indenture or is merged or consolidated with or into, or transfers or otherwise disposes of all of substantially all of its assets to or is liquidated
into, the Company or a Restricted Subsidiary of the Company after January 1, 2010, the lesser of, as of the date of such redesignation, merger, consolidation, transfer, disposition or liquidation, (i) the Fair Market Value of the
Company’s Restricted Investment in such Subsidiary (or of the properties or assets disposed of, as applicable) as of the date of such redesignation, merger, consolidation, transfer, disposition or liquidation and (ii) such Fair Market
Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after January 1, 2010; and
(f) any dividends or distributions received in cash by the Company or a Restricted Subsidiary of the Company after
January 1, 2010 from an Unrestricted Subsidiary of the Company, to the extent that such dividends or distributions were not otherwise included in the Consolidated Net Income of the Company for such period.
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The provisions of the foregoing paragraph shall not prohibit:
(1) the payment of any dividends or distribution or the consummation of any irrevocable redemption within 60 days after the
date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend, distribution or redemption payment would have complied with the provisions of this
Indenture;
(2) the making of any Restricted Payment in exchange for, or out or with Excluded Contributions or the
Net Cash Proceeds of, the substantially concurrent sale of Equity Interests of the Company (other than Disqualified Stock and other than Equity Interests issued or sold to a Subsidiary of the Company); provided that the amount of any such the
Net Cash Proceeds or Excluded Contributions that are utilized for any such Restricted Payment shall be excluded from the calculation of amounts under clause (3)(b) of the preceding paragraph (but only to the extent that the amount of such Net
Cash Proceeds or Excluded Contributions were used to purchase or redeem such Equity Interests as provided in this clause (2));
(3) any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Obligations
or Disqualified Stock of the Company or Subordinated Obligations or Preferred Stock of any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Subordinated Obligations or Equity Interests of the Company or
any Guarantor;
(4) repurchases of Subordinated Obligations of the Company or any Guarantor at a purchase price not greater
than (i) 101% of the principal amount of such Subordinated Obligations in the event of a change of control or (ii) 100% of the principal amount of such Subordinated Obligations in the event of an asset disposition, in each case plus
accrued and unpaid interest thereon, to the extent required by the terms of such Subordinated Obligations, but only if:
(a) in the case of a change of control, the Company has first complied with and fully satisfied its obligations under
Section 3.9; or
(b) in the case of an asset disposition, the Company has complied with and fully satisfied its
obligations in accordance with Section 3.5;
(5) the repurchase, redemption or other acquisition or retirement
for value of Equity Interests of the Company or any of its Subsidiaries held by any current or former officer, director or employee of the Company or any of its Subsidiaries (or their respective estates, heirs, family members, spouses, former
spouses or beneficiaries under their estates or other permitted transferees), pursuant to the terms of any equity subscription agreement, stock option agreement, shareholders’ agreement, compensation agreement or arrangement or similar
agreement; provided that the aggregate amount of such acquisitions or retirements (excluding amounts representing cancellation of Indebtedness) shall not exceed $7.0 million in any calendar year (with any portion of such $7.0 million amount
that is unused in any calendar year to be carried forward to
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successive calendar years and added to such amount, provided that such amount shall not exceed $10.0 million at any time); provided further that such amount in any calendar year
may be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by the Company after the Issue Date;
(6) the repurchase of Equity Interests deemed to occur upon the exercise of stock or other equity options to the extent such
Equity Interests represent a portion of the exercise price of those stock or other equity options and any repurchase or other acquisition of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of stock
options, warrants, incentives or other rights to acquire Equity Interests;
(7) dividends on the Company’s Capital
Stock not to exceed an annual rate of $0.50 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the Issue Date so that the aggregate amount of
dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction);
(8)
the declaration and payment of regularly scheduled or accrued dividends or distributions to holders of any class or series of Disqualified Stock of the Company or any Preferred Stock of any Restricted Subsidiary of the Company issued on or after the
Issue Date in accordance with Section 3.2;
(9) payments of cash, dividends, distributions, advances or other
Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash in lieu of the issuance of fractional shares upon (i) the exercise of options or warrants or (ii) the conversion or exchange of Equity
Interests of any such Person;
(10) payments to dissenting stockholders of the Company not to exceed $5.0 million in the
aggregate made (a) pursuant to applicable law or (b) in connection with the settlement or other satisfaction of legal claims made pursuant to or in connection with a consolidation, merger or transfer of assets in connection with a
transaction not prohibited by this Indenture;
(11) Equity Repurchases (a) in an aggregate amount not in excess
of $500.0 million and (b) in excess of the amount provided in clause (a) provided that, in the case of (b), immediately after giving effect to such Restricted Payment and the incurrence of any Indebtedness to finance such
repurchase, as if it had occurred at the beginning of the most recently ended four full fiscal quarters for which internal financial statements of the Company are available, the Total Leverage Ratio would not be greater than 2.75 to 1.0,
provided, however, that such amount shall be included in the calculation of the amount available for Restricted Payments pursuant to clause (3) of the preceding paragraph, but shall not reduce such amount available for Restricted
Payments below zero;
(12) a Qualified Spin Transaction; and
(13) Restricted Payments in an aggregate amount since January 1, 2010 not to exceed the greater of (a) $100.0 million
and (b) 1.0% of the Company’s ACNTA.
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For the purposes of this Section 3.3, a sale of Equity Interests or Subordinated Obligations
shall be deemed “substantially concurrent” if such sale occurs within 120 days of the applicable exchange. For purposes of determining compliance with this Section 3.3, in the event that a Restricted Payment or other transaction
governed by this Section 3.3 meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) through (13) of the preceding paragraph, or is permitted pursuant to the first paragraph of this
Section 3.3, the Company will be permitted to classify or divide (or later classify, reclassify, divide or redivide in whole or in part in its sole discretion) such Restricted Payment or other such transaction (or portion thereof) on the date
made or later classify, reclassify, divide or re-divide such Restricted Payment or other such transaction (or portion thereof) in any manner that complies with this Section 3.3. The amount of all Restricted Payments (other than cash) will be
the Fair Market Value on the date of the Restricted Payment (or, in the case of a dividend or distribution, on the date of declaration) of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary,
as the case may be, pursuant to the Restricted Payment.
SECTION 3.4. Limitation on Restrictions on Distributions from Restricted
Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any
Indebtedness owed to the Company or any Restricted Subsidiary of the Company (provided, however, that (i) the priority that any series of Preferred Stock of a Restricted Subsidiary of the Company has in receiving dividends or
liquidating distributions shall not be deemed to be a restriction on the ability to pay dividends or make other distributions on its Capital Stock for purposes of this covenant and (ii) the subordination of Indebtedness owed to the Company or
any Restricted Subsidiary to other Indebtedness incurred by any Restricted Subsidiary shall not be deemed a restriction on the ability to pay Indebtedness);
(2) make any loans or advances to the Company or a Restricted Subsidiary of the Company (it being understood that the
subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) sell, lease or transfer any of its property or assets to the Company or a Restricted Subsidiary of the Company.
However, the preceding restrictions of this Section 3.4 will not apply to encumbrances or restrictions existing under or by reason of:
(1) any encumbrance or restriction in any agreement in effect on the Issue Date (including the Credit Agreement);
(2) this Indenture, the Securities and the Subsidiary Guarantees;
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(3) any encumbrance or restriction with respect to a Restricted Subsidiary of the
Company pursuant to an agreement relating to any Indebtedness incurred by such Restricted Subsidiary on or prior to the date on which such Restricted Subsidiary was acquired by the Company or became a Restricted Subsidiary of the Company (other than
Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary of the Company or was acquired by the Company) and outstanding on such date;
(4) any encumbrance or
restriction pursuant to an agreement effecting a Refinancing of Indebtedness incurred pursuant to an agreement referred to in clause (1), (2) or (3) of this paragraph or this clause (4) or contained in any amendment to an agreement
referred to in clause (1), (2) or (3) of this paragraph or this clause (4); provided that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no
less favorable to the Securityholders than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such agreements, as determined in good faith by the Company;
(5) (a) customary non-assignment provisions in any contract, license, lease or sale or exchange agreement and (b) cash,
other deposits, or net worth or similar requirements, in each case, imposed by suppliers, customers or lessors under contracts or leases, in the case of each of clauses (a) and (b), entered into in the ordinary course of business;
(6) in the case of clause (3) of the preceding paragraph, restrictions contained in Capital Lease Obligations, purchase
money obligations, security agreements or mortgages securing Indebtedness of a Restricted Subsidiary of the Company to the extent such restrictions restrict the transfer of the property subject to such Capital Lease Obligations, purchase money
obligations, security agreements or mortgages;
(7) any restriction with respect to a Restricted Subsidiary of the Company
imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(8) any encumbrance or restriction in any agreement or instrument in the Existing Receivables Financing and in connection with
a Qualified Receivables Transaction;
(9) Refinancing Indebtedness; provided that the encumbrances or
restrictions contained in the agreements governing such Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced, as determined in good faith
by the Company;
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(10) Liens securing Indebtedness otherwise permitted to be incurred under the
provisions of Section 3.6 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11)
provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including, without limitation, agreements
entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) encumbrances or restrictions applicable only to a Restricted Subsidiary of the Company that is not a Domestic Subsidiary;
(13) customary encumbrances and restrictions contained in agreements of the types described in the definition of
“Permitted Business Investments”;
(14) agreements governing Hedging Contracts, Interest Rate Agreements and
Currency Agreements incurred in the ordinary course of business;
(15) any encumbrance or restriction with respect
to an Unrestricted Subsidiary pursuant to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary of the Company;
provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary of the Company and any such encumbrance or restriction does not extend to any assets or property of the Company
or any other Restricted Subsidiary of the Company other than the assets and property of such Unrestricted Subsidiary;
(16) provisions limiting the distribution or dividend of assets or any portion of Capital Stock of SpinCo in connection with a
Qualified Spin Transaction; and
(17) any encumbrances or restrictions imposed by any amendments of the contracts,
instruments or obligations referred to in clauses (1) through (16) of this paragraph; provided that such amendments are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such
amendment or refinancing, as determined in good faith by the Company.
SECTION 3.5. Limitation on Sales of Assets and Subsidiary
Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or a Restricted Subsidiary receives consideration at least equal to the Fair Market Value (measured as of the
date of the definitive agreement with respect to such Asset Disposition), of the assets and Equity Interests issued or sold pursuant to such Asset Disposition;
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(2) at least 75% of the consideration received by the Company or its Restricted
Subsidiaries is in the form of cash or Temporary Cash Investments, Additional Assets or any combination thereof (collectively, the “Cash Consideration”); provided that each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Securities or any Subsidiary Guarantee) that are assumed by the transferee by written agreement that releases the Company or such Restricted
Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(b) with respect to
any Asset Disposition of Oil and Gas Properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary
related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(c) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that
are, within 180 days of the Asset Disposition, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(d) any Designated Non-Cash Consideration received by the Company or such Restricted Subsidiary in such Asset Disposition
having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (d), not to exceed an amount equal to 7.5% of the Company’s ACNTA (determined at the time of receipt of such
Designated Non-Cash Consideration), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or a Restricted
Subsidiary, as the case may be) within 365 days to:
(a) prepay, repay, redeem or purchase any Senior Debt;
(b) acquire Additional Assets; or
(c) make capital expenditures in a Permitted Business.
The requirement of clauses (3)(b) and (3)(c) of the preceding paragraph of this Section 3.5 shall be deemed to be satisfied if
a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company (or any Restricted Subsidiary of the Company) with a Person other than a Restricted Subsidiary of
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the Company within the time period specified in the preceding paragraph and such Net Available Cash is subsequently applied in accordance with such contract within six months following the date
such agreement is entered into.
Pending application of Net Available Cash pursuant to this Section 3.5, the Company or any
Restricted Subsidiary of the Company may apply the Net Available Cash to temporarily reducing Indebtedness under any Credit Facility or otherwise invest the Net Available Cash in any manner that is not prohibited by this Indenture.
The amount of Net Available Cash not applied or invested as provided above will constitute “Excess Proceeds.” When the
aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Company shall make an offer to purchase Securities and other Pari Passu Indebtedness of the Company (an “Asset Disposition Offer”) within 30 days, and shall
purchase Securities tendered pursuant to an Offer by the Company for the Securities (and such other Pari Passu Indebtedness of the Company) at a purchase price of 100% of their principal amount without premium, plus accrued but unpaid interest to,
but not including, the date of purchase, subject to the right of Holders of record on the relevant record date to receive interest on the relevant interest payment date (or, in respect of such other Pari Passu Indebtedness of the Company, such
lesser price, if any, as may be provided for by the terms of such Pari Passu Indebtedness of the Company) in accordance with the procedures (including prorating in the event of oversubscription) set forth below in this Section 3.5. Upon
completion of an Asset Disposition Offer, Excess Proceeds will be deemed to be reset to zero.
The Asset Disposition Offer will remain
open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination
of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will purchase the principal amount of Securities and Pari Passu Securities required to be purchased pursuant to this Section 3.5 (the
“Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly tendered and not properly withdrawn, all Securities and Pari Passu Securities validly tendered and not properly withdrawn in
response to the Asset Disposition Offer.
If the Asset Disposition Purchase Date is on or after an interest record date and on or before
the related interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no further interest will be payable to Holders who tender
Securities pursuant to the Asset Disposition Offer.
On or before the Asset Disposition Purchase Date, the Company will, to the
extent lawful, accept for payment, to the extent necessary on a pro rata basis (except that any Securities represented by a Security in global form will be selected by such method as DTC or its nominee or successor may require or, where such
nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), the Asset Disposition Offer Amount of Securities and Pari Passu
Securities or portions of Securities and Pari Passu Securities so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer
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Amount has been validly tendered and not properly withdrawn, all Securities and Pari Passu Securities so validly tendered and not properly withdrawn, in each case in minimum principal amount
of $2,000 and integral multiples of $1,000 in excess of $2,000; provided that if, following the repurchase of a portion of a Security, the remaining principal amount of such Security outstanding immediately after such repurchase would be less
than $2,000, then the portion of such Security so repurchased shall be reduced such that the remaining principal amount of such Security outstanding immediately after such repurchase is $2,000. The Company will deliver to the Trustee an
Officers’ Certificate stating that such Securities or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.5 and, in addition, the Company will deliver all certificates and notes
required, if any, by the agreements governing the Pari Passu Securities. The Company or the paying agent, as the case may be, will promptly (but in any case not later than five Business Days after the termination of the Asset Disposition Offer
Period) mail (or otherwise deliver in accordance with the applicable procedures of DTC) to each tendering Holder of Securities or holder or lender of Pari Passu Securities, as the case may be, an amount equal to the purchase price of the Securities
or Pari Passu Securities so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Security, and the Trustee, upon delivery of an
authentication order from the Company, will authenticate and mail or deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of the Security surrendered; provided that each such new Security will be in
a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. In addition, the Company will take any and all other actions required by the agreements governing the Pari Passu Securities. Any Security not so accepted
will be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Asset Disposition Purchase Date.
The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Securities pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 3.5, the Company will comply
with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of its compliance with such securities laws or regulations.
SECTION 3.6. Limitation on Liens. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien (the “Initial Lien”), other than Permitted Liens, of any nature whatsoever against any assets of the Company or any Restricted Subsidiary of the Company (including
Capital Stock of a Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired, which Lien secures Indebtedness or trade payables, unless contemporaneously therewith:
(1) in the case of any such Lien securing an obligation that ranks pari passu with the Securities or a Guarantee,
effective provision is made to secure the Securities or such Guarantee, as the case may be, at least equally and ratably with or prior to such obligation with a Lien on the same assets of the Company or such Restricted Subsidiary, as the case may
be; and
(2) in the case of any such Lien securing an obligation that is subordinated in right of payment to the Securities
or a Guarantee, effective provision is made to secure the Securities or such Guarantee, as the case may be, with a Lien on the same assets of the Company or such Restricted Subsidiary, as the case may be, that is prior to the Lien securing such
subordinated obligation;
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provided that any Lien created for the benefit of the Holders of the Securities pursuant to this covenant
shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
Any Lien created for the benefit of the Holders pursuant to the preceding paragraph shall provide by its terms that such Lien shall be
automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
SECTION 3.7.
[Reserved].
SECTION 3.8. Limitation on Affiliate Transactions. The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company (an
“Affiliate Transaction”) unless the terms thereof:
(1) are not materially less favorable to the Company
or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’s-length dealings with a Person who is not such an Affiliate or, if in the good faith judgment of the Board of Directors, no comparable
transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(2) if such Affiliate Transaction involves an amount in excess of $30.0 million, are set forth in writing and have been
approved by the Board of Directors, including a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction.
The following items will not be deemed to be Affiliate Transactions under this Indenture and, therefore, will not be subject to the provisions
of foregoing paragraph:
(1) any employment agreement, employee benefit plan, officer or director indemnification agreement
or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) any sale of Hydrocarbons or other mineral products to an Affiliate of the Company or the entering into or performance of
Hedging Contracts, contracts for exploring for, producing, gathering, marketing, processing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts entered into
in the ordinary course of business which are fair to the Company and its Restricted Subsidiaries taken as a whole, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, as determined in
good faith by the Company;
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(3) the sale or issuance to an Affiliate of the Company of Capital Stock of the
Company that does not constitute Disqualified Stock, and the sale to an Affiliate of the Company of Indebtedness (including Disqualified Stock) of the Company in connection with an offering of such Indebtedness in a market transaction and on terms
substantially identical to those of other purchasers in such market transaction;
(4) transactions with a Person (other
than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary of the Company, Capital Stock in, or controls, such Person;
(5) transactions between the Company or any Restricted Subsidiary of the Company and any Person, a director of which is also a
director of the Company and such director is the sole cause for such Person to be deemed an Affiliate of the Company or such Restricted Subsidiary; provided that such director shall abstain from voting as a director of the Company on any
matter involving such other person;
(6) the payment of reasonable fees to and reimbursements of expenses (including travel
and entertainment expenses and similar expenditures in the ordinary course of business) of employees, officers, directors or consultants of the Company or any of its Subsidiaries;
(7) transactions between or among the Company and its Restricted Subsidiaries;
(8) Restricted Payments that are permitted by the provisions of Section 3.3 or Permitted Investments;
(9) sales, contributions, conveyances and other transfers of Receivables and related assets of the type specified in the
definition of Qualified Receivables Transaction to a Receivables Subsidiary or any other similar transactions in connection with any Qualified Receivables Transaction;
(10) transactions effected in accordance with the terms of any agreement to which the Company or any Restricted Subsidiary of
the Company is a party as of the Issue Date and scheduled in this Indenture, and any amendments, modifications, supplements, extensions, renewals or replacements thereof so long as such amendments, modifications, supplements, extensions, renewals or
replacements do not materially and adversely affect the rights, taken as a whole, of the Holders of the Securities as compared to the terms of such agreement in effect on the Issue Date, as determined in good faith by the Company;
(11) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a
letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of
clause (1) of the preceding paragraph;
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(12) loans or advances to employees, officers or directors in the ordinary course
of business and approved by the Company’s Board of Directors in an aggregate principal amount not to exceed $7.5 million outstanding at any one time;
(13) agreements and transactions entered into or effected in connection with a Qualified Spin Transaction; and
(14) (a) Guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of the Company’s
Unrestricted Subsidiaries in the ordinary course of business, except for Guarantees of Indebtedness and (b) pledges by the Company or any Restricted Subsidiary of the Company of (or any Guarantee by the Company or any Restricted Subsidiary
limited in recourse solely to) Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Company’s Unrestricted Subsidiaries.
SECTION 3.9. Purchase of Securities Upon a Change of Control. If a Change of Control occurs, unless the Company has previously or
concurrently exercised its right to redeem all of the Securities pursuant to Section 5.1 and paragraph 5 of the Securities or another of the exceptions set forth below applies, each Holder will have the right to require the Company to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess of $2,000) of such Holder’s Securities at a purchase price in cash equal to 101% of the principal amount of the Securities plus accrued and unpaid interest,
if any, to the date of purchase (the “Change of Control Payment”) (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).
Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the
Securities pursuant to Section 5.1 and paragraph 5 of the Securities or another of the exceptions described below applies, the Company will mail a notice (the “Change of Control Offer”) to each Holder or otherwise deliver in
accordance with the applicable procedures of DTC, with a copy to the Trustee, stating:
(1) that a Change of Control has
occurred and that such Holder has the right to require the Company to purchase such Holder’s Securities at a purchase price in cash equal to the Change of Control Payment (subject to the right of Holders of record on a record date to receive
interest on the relevant interest payment date);
(2) the circumstances and relevant facts regarding such Change of
Control;
(3) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice
is mailed or otherwise delivered in accordance with the applicable procedures of DTC) (the “Change of Control Payment Date”);
(4) that any Security not properly tendered will remain outstanding and continue to accrue interest;
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(5) that unless the Company defaults in the payment of the Change of Control
Payment, all Securities accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;
(6) that Holders electing to have any Definitive Securities purchased pursuant to a Change of Control Offer will be required to
surrender such Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Definitive Securities completed, to the paying agent specified in the notice at the address specified in the notice prior to the
close of business on the third Business Day preceding the Change of Control Payment Date;
(7) that Holders will be
entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided that the paying agent receives, not later than the close of business on the third Business Day preceding the Change
of Control Payment Date, an electronic or facsimile transmission or letter setting forth the name of the Holder of the Securities, the principal amount of Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered
Securities and its election to have such Securities purchased;
(8) that if the Company is repurchasing a portion of the
Security of any Holder, the Holder will be issued a new Note equal in principal amount to the unpurchased portion of the Note surrendered, provided that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000
and an integral multiple of $1,000 in excess of $2,000; and
(9) the procedures determined by the Company, consistent with
this Indenture, that a Holder must follow in order to have its Securities repurchased.
Promptly following the expiration of the Change of
Control, the Company will, to the extent lawful, accept for payment all Securities or portions of Securities (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of
Control Offer and not properly withdrawn; provided that if, following repurchase of a portion of a Security, the remaining principal amount of such Security outstanding immediately after such repurchase would be less than $2,000, then the
portion of such Security so repurchased shall be reduced so that the remaining principal amount of such Security outstanding immediately after such repurchase is $2,000. Promptly after such acceptance, the Company will, on the Change of Control
Payment Date:
(1) deposit with the paying agent an amount equal to the Change of Control Payment in respect of all
Securities or portions of Securities accepted for payment; and
(2) deliver or cause to be delivered to the Trustee the
Securities properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Securities or portions of Securities being purchased by the Company.
The paying agent will promptly mail to each Holder whose Securities are accepted for payment the Change of Control Payment for such Securities
(or, if all the Securities are then in global form, make such payment through the facilities of DTC), and the Trustee will promptly
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authenticate and mail (or cause to be transferred by book-entry in accordance with the applicable procedures of DTC) to each Holder a new Security equal in principal amount to any unpurchased
portion of the Securities surrendered, if any; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000.
If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued
and unpaid interest, will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no further interest will be payable to Holders who tender pursuant to the Change of Control Offer.
The Company is not required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with this Section 3.9 applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not properly withdrawn under such Change of
Control Offer, (ii) notice of redemption of all outstanding Securities has been given pursuant to Section 5.5 of this Indenture, unless and until there is a default in payment of the applicable redemption price or (iii) in connection
with or in contemplation of any Change of Control, the Company has made an offer to purchase (an “Alternate Offer”) any and all Securities validly tendered at a cash price equal to or higher than the Change of Control Payment and
has purchased all Securities properly tendered in accordance with the terms of such Alternate Offer.
A Change of Control Offer may be
made in advance of a Change of Control, and conditioned upon the consummation of such Change of Control, if a definitive agreement or letter of intent is in place for the Change of Control at the time of making the Change of Control Offer.
The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 3.9, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.9 by virtue of its compliance with such securities laws or regulations.
In the event that, upon consummation of a Change of Control Offer or Alternate Offer, less than 10% in aggregate principal amount of the
Securities (including Additional Securities, if any) that were originally issued are held by Holders other than the Company or Affiliates thereof, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given
not more than 30 days following the purchase pursuant to the Change of Control Offer or Alternate Offer described above, to redeem all of the Securities that remain outstanding following such purchase at a redemption price equal to the Change of
Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the Securities that remain outstanding, to, but not including, the Redemption Date (subject to the rights of Holders of record
on the relevant record date to receive interest due on an interest payment date that is on or prior to the Redemption Date).
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SECTION 3.10. Provision of Financial Information. Whether or not required by the
Securities and Exchange Commission (the “SEC”), so long as any Securities are outstanding, the Company will furnish or make available to the Holders of Securities, within the time periods specified in the SEC’s rules and
regulations for a company that is subject to Section 13(a) or 15(d) of the Exchange Act:
(1) all quarterly and annual
financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were required to file such Forms, including a “Management’s Discussion and Analysis of Financial Condition and
Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s certified independent accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such
reports;
provided that any such above information or reports filed with the EDGAR system of the SEC (or any successor system) and available
publicly on the Internet shall be deemed to be furnished or made available to the Holders of Securities, it being understood that the Trustee shall have no obligation to determine if any such information or reports have been so filed or are so
available.
If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries hold
more than 10.0% of the Adjusted Consolidated Net Tangible Assets of the Company in the aggregate, then the quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, either on the
face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Company’s
Unrestricted Subsidiaries.
The Company and the Subsidiary Guarantors will agree in this Indenture that, for so long as any Securities
remain outstanding and are “restricted securities” under Rule 144 of the Securities Act, if at any time they are not required to file with the SEC the reports required by the first paragraph of this covenant, the Company and the Subsidiary
Guarantors will furnish to Holders and securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
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 3.11. Future Subsidiary Guarantors. If, after the Issue Date, any
Domestic Subsidiary of the Company that is not an Immaterial Subsidiary and that is not already a Subsidiary Guarantor Guarantees or otherwise becomes an obligor with respect to any other Indebtedness of the Company or any Subsidiary Guarantor in
excess of the De Minimis Amount, then such Domestic Subsidiary will become a Guarantor by executing a supplemental indenture and delivering it to the Trustee within 20 Business Days of the date on which it Guaranteed or
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became an obligor with respect to such Indebtedness; provided, however, that the preceding shall not apply to Subsidiaries of the Company that have properly been designated as
Unrestricted Subsidiaries in accordance with this Indenture for so long as they continue to constitute Unrestricted Subsidiaries. Notwithstanding the preceding, any Subsidiary Guarantee of a Domestic Subsidiary that was incurred pursuant to this
Section 3.11 shall provide by its terms that it shall be automatically and unconditionally released at such time as such Subsidiary Guarantor ceases to Guarantee or otherwise be an obligor with respect to any other Indebtedness of the Company
or any other Subsidiary Guarantor in excess of the De Minimis Amount.
The Obligations of each Subsidiary Guarantor shall be limited as
described in Section 10.2.
Each Subsidiary Guarantor shall be released in accordance with the provisions of this Indenture described
in Section 10.2.
SECTION 3.12. Maintenance of Office or Agency. The Company will maintain an office or agency where the
Securities may be presented or surrendered for payment, where, if applicable, the Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The corporate trust office of the Trustee indicated in Section 2.3 shall be such office or agency of the Company, unless the Company shall designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any change in the location of any 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 corporate trust office of the Trustee indicated in Section 12.2, and the Company hereby appoint the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
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 any such designation. The Company will give prompt written notice to the Trustee of any such designation or
rescission and any change in the location of any such other office or agency.
SECTION 3.13. Corporate Existence. Except as
otherwise provided in Article IV, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory), licenses and franchises; provided, however,
that the Company shall not be required to preserve any such right, license or franchise if it shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company.
SECTION 3.14. Payment of Taxes. The Company shall pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, all material taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment or charge the amount, applicability or validity of which is being contested in good faith by appropriate proceedings.
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SECTION 3.15. Designation of Unrestricted Subsidiaries. The Board of Directors of the
Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all
outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be deemed to be either an Investment made as of the time of the designation that will reduce the amount available for
Restricted Payments under Section 3.3 or represent a Permitted Investment under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be
permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
Any designation of
a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying
that such designation complied with the preceding conditions and was permitted by Section 3.3. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to
be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as
of such date under Section 3.2.
The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary of the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such
designation will only be permitted if (1) such Indebtedness is permitted under Section 3.2, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Default or
Event of Default would be in existence following such designation.
SECTION 3.16. Compliance Certificate. The Company and the
Subsidiary Guarantors shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (which currently ends on December 31) ending after the Issue Date an Officers’ Certificate signed by the principal
executive officer, the principal accounting officer or the principal financial officer of each of the Company and the Subsidiary Guarantors, stating that a review of the activities of the Company and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a view to determining whether each of the Company and the Subsidiary Guarantors has performed its obligations under this Indenture, and further stating whether or not the
signers know of any Default that occurred during such period. If they do, the certificate shall describe such Default, its status and what action the Company is taking or proposes to take with respect thereto. The Company also shall comply with TIA
§ 314(a)(4).
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SECTION 3.17. Further Instruments and Acts. Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
SECTION 3.18. [Reserved].
SECTION 3.19. Statement by Officers as to Default. The Company shall, so long as any Security is outstanding, deliver to the Trustee
within 30 days after the Company becomes aware of the occurrence of a Default or receives notice of such Default, as applicable, written notice of any Defaults, their status and what action the Company is taking or proposing to take in respect
thereof.
SECTION 3.20. Covenant Termination. Beginning on the date (the “Covenant Termination Date”) that
(a) the Securities have an Investment Grade Rating from either Rating Agency and (b) no Default or Event of Default has occurred and is continuing, the Company and its Restricted Subsidiaries will no longer be subject to the provisions of
this Indenture set forth in Sections 3.2, 3.3, 3.4, 3.5, 3.8, 3.11, 3.15 and clause (3) of the first paragraph of Section 4.1 hereof.
After the Covenant Termination Date, the Board of Directors of the Company may not designate any of the Company’s Subsidiaries as
Unrestricted Subsidiaries.
Promptly following the Covenant Termination Date, the Company will provide an Officers’ Certificate to
the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a Covenant Termination Date has occurred or notify the Holders of the Covenant Termination Date. The Trustee may provide a copy of
such Officers’ Certificate to any Holder of the Securities upon request.
ARTICLE IV
SUCCESSOR COMPANY
SECTION 4.1.
Merger and Consolidation.
The Company shall not consolidate with or merge with or into, or convey, transfer, lease or otherwise
dispose of, in one transaction or a series of transactions, all or substantially all the assets of the Company and its Restricted Subsidiaries, taken as a whole, to, any Person, unless:
(1) (a) the resulting, surviving or transferee Person (if not the Company) (the “Successor Company”) shall be
a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and (b) the Successor Company (if not the Company) shall expressly assume all the obligations of the Company under the
Securities, this Indenture and any applicable Registration Rights Agreement pursuant to agreements in form reasonably satisfactory to the Trustee;
(2) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
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(3) immediately after giving effect to such transaction and any related financing
transaction on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, either (i) the Company or the Successor Company (if other than the Company) would be able to incur an additional $1.00 of
Indebtedness pursuant to the first paragraph of Section 3.2 or (ii) the Consolidated Coverage Ratio of the Company or the Successor Company (if other than the Company) is equal to or greater than the Consolidated Coverage Ratio of the
Company immediately prior to such transaction; and
(4) the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such transaction and such supplemental indenture, if any, comply with this Indenture.
For
purposes of this paragraph, except as provided in the next paragraph, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the assets of one or more Restricted
Subsidiaries, the Capital Stock of which constitute all or substantially all of the assets of the Company, will be deemed to be the transfer of all or substantially all of the assets of the Company.
The foregoing notwithstanding, the restrictions in the preceding paragraph will not apply to any disposition of assets resulting from a
Qualified Spin Transaction that is effected in accordance with the definition of that term. Furthermore, any Restricted Subsidiary of the Company may consolidate with or merge into the Company and the Company may consolidate with or merge into or
dispose of all or substantially all of its assets to any Guarantor, without complying with clause (3) of the preceding paragraph in connection with any such consolidation, merger or disposition.
The foregoing notwithstanding, the Company may reorganize as any other form of entity in accordance with the following procedures
provided that:
(1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets
or otherwise) of the Company into a form of entity other than a corporation formed under Delaware law;
(2) the entity so
formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia;
(3) the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the
Securities and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee;
(4)
immediately after such reorganization no Default exists; and
(5) such reorganization is not materially adverse to the
Holders or Beneficial Owners of the Securities.
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Upon any consolidation, merger, conveyance, transfer, lease or other disposition of all or
substantially all of the assets of the Company in accordance with this Section 4.1, the Company will be released from its obligations under this Indenture and the Securities, and the Successor Company will succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture, the Securities and any applicable Registration Rights Agreement; provided that, in the case of a lease of all or substantially all its assets, the Company will not
be released from the obligation to pay the principal of and interest on the Securities.
The Company will not permit any Subsidiary
Guarantor to consolidate with or merge with or into, or convey, transfer, lease or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its assets to any Person (other than the Company or a Subsidiary
Guarantor) unless either the Subsidiary Guarantee of such Subsidiary Guarantor is released pursuant to Section 10.2 or:
(1) the resulting, surviving or transferee Person (if not such Subsidiary) (the “Successor Guarantor”) shall
be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and the Successor Guarantor shall
expressly assume, by executing a supplemental indenture in form reasonably satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee and any applicable Registration Rights Agreement;
(2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness
which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(3) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such transaction and such supplemental indenture, if any, comply with this Indenture.
ARTICLE V
REDEMPTION OF SECURITIES
SECTION
5.1. Redemption. The Securities may be redeemed (a) as a whole or from time to time in part, subject to the conditions and at the redemption prices specified in paragraph 5 of the forms of Securities set forth in Exhibit A and Exhibit B
hereto, which are hereby incorporated by reference and made a part of this Indenture, or (b) as a whole, and not less than as a whole, subject to the conditions and at the redemption price specified in the last paragraph of Section 3.9, in
each case together with accrued and unpaid interest (including Additional Interest) to the Redemption Date.
SECTION 5.2. Applicability
of Article. Redemption of Securities at the election of the Company, as permitted by any provision of this Indenture, shall be made in accordance with such provision and this Article.
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SECTION 5.3. Election to Redeem; Notice to Trustee. In case of any redemption at the
election of the Company, the Company shall, not later than five Business Days prior to giving notice of any redemption pursuant to Section 5.5 (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities to be redeemed and, in the case of any redemption of less than all Securities, shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities
to be redeemed pursuant to Section 5.4. Any such notice may be cancelled at any time prior to notice of such redemption being given to any Holder and shall thereby be void and of no effect.
SECTION 5.4. Selection by Trustee of Securities to Be Redeemed. If less than all the Securities are to be redeemed at any time pursuant
to an optional redemption, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the outstanding Securities not previously called for redemption, on a pro rata basis
(or, in the case of Securities issued in global form based on such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, such method that most nearly approximates pro rata selection as the
Trustee deems fair and appropriate, unless otherwise required by law). Any partial redemption may provide for the selection for redemption of portions of the principal of the Securities in denominations of $2,000 or larger integral multiples of
$1,000; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than $2,000.
The Trustee shall promptly notify the Company of any Securities selected for redemption other than in accordance with DTC’s procedures
and, in the case of any Securities selected for partial redemption, the method it has chosen for the selection of Securities and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
SECTION 5.5. Notice of Redemption. Notice of redemption shall be given in the manner provided for in Section 12.2, not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, except that redemption notices may be given more than 60 days prior to a Redemption Date if the notice is issued in connection with a legal
defeasance or covenant defeasance of the Securities or a satisfaction and discharge of this Indenture pursuant to Article VIII. At the Company’s request, the Trustee shall give notice of redemption in the Company’s name and at the
Company’s expense; provided, however, that the Company shall deliver to the Trustee, at least five Business Days prior to the giving of such notice (unless a shorter period shall be satisfactory to the Trustee), a Company Order
requesting that the Trustee give such notice at the Company’s expense and setting forth the information to be stated in such notice as provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the redemption price, if then determinable, and otherwise the method for its
determination and the amount of accrued interest (including Additional Interest) to the Redemption Date payable as provided in Section 5.7, if any,
(3) if less than all outstanding Securities are to be redeemed, the identification of the particular Securities (or portion
thereof) to be redeemed, as well as the aggregate principal amount of Securities to be redeemed and the aggregate principal amount of Securities to be outstanding after such partial redemption,
(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state the portion of
the principal amount thereof to be redeemed and that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that, subject to the satisfaction of any condition precedent specified in such notice,
on the Redemption Date the redemption price (and accrued interest (including Additional Interest), if any, to the Redemption Date payable as provided in Section 5.7) will become due and payable upon each such Security, or the portion thereof,
to be redeemed, and, unless the Company defaults in making the redemption payment, that interest on Securities called for redemption (or the portion thereof) will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered for payment of the redemption price and accrued interest,
if any,
(7) the name and address of the Paying Agent,
(8) that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price,
(9) the CUSIP, Common Code and ISIN numbers, if applicable, and may state that no representation is made as to the accuracy or
correctness of the CUSIP, Common Code and ISIN numbers, if applicable, if any, listed in such notice or printed on the Securities, and
(10) the Section of this Indenture or the paragraph of the Securities pursuant to which the Securities are to be redeemed.
Any redemption or notice of redemption may, at the Company’s discretion, be subject to one or more conditions precedent specified in the
notice of redemption.
SECTION 5.6. Deposit of Redemption Price. Prior to 11:00 a.m., New York City time, on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company or any of the Company’s Restricted Subsidiaries is acting as its own Paying Agent, segregate and hold in trust as provided in Section 2.4) an amount of
money sufficient to pay the redemption price of and accrued interest (including Additional Interest) on, all the Securities which are to be redeemed on that date, other than Securities or portions of Securities called for redemption that are
beneficially owned by the Company and have been delivered by the Company to the Trustee for cancellation.
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SECTION 5.7. Securities Payable on Redemption Date. Notice of redemption having been given
as aforesaid, the Securities or portions of Securities so to be redeemed without any condition precedent shall, on the Redemption Date, become due and payable at the redemption price therein specified (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default in the payment of the redemption price and accrued interest) such Securities shall cease to bear interest and the only right of the Holders thereof will be to receive
payment of the redemption price and, subject to the next sentence, unpaid interest on such Securities to the Redemption Date. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the
Company at the redemption price, together with accrued interest, if any, to the Redemption Date, provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holder
of such Security, or one or more predecessor Securities, registered as such as of the relevant record date.
If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the unpaid principal (including premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Securities.
SECTION 5.8. Securities Redeemed in Part. Any Security which is to be redeemed only in part (pursuant to the provisions of this
Article) shall be surrendered at the office or agency of the Company maintained for such purpose pursuant to Section 3.12 (with, if the Company or the Trustee so require, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder of such Security at the expense of the Company, a new Security or Securities, of any authorized denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided, that each such new Security will be in a principal amount of $2,000 or larger integral multiple of $1,000.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. An “Event of Default” wherever used herein, means any one of the following events
in relation to the Securities (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in any payment of interest (including any Additional
Interest required by the applicable Registration Rights Agreement) on any Security when due, continued for 30 days;
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(2) default in the payment of principal of any Security when due (at its Stated
Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise);
(3) the
failure by the Company for 30 days after written notice as provided below to comply with any of its obligations in Sections 3.5 and 3.9 to offer to purchase or purchase Securities or with its obligations under Article IV;
(4) the failure by the Company for 180 days after written notice as provided below to comply with any of its obligations in
Section 3.10;
(5) the failure by the Company for 60 days after written notice as provided below to comply with its
other agreements contained in this Indenture;
(6) default under any mortgage, indenture or instrument under which there is
issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is Guaranteed by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default:
(a) is caused by a failure to
pay principal of, premium, if any, on, or interest, if any, on, such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or
(b) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so accelerated, aggregates $75.0 million or more; provided, however, that if, prior to any acceleration of the Securities, (i) any such Payment Default is cured or
waived, (ii) any such acceleration is rescinded, or (iii) such Indebtedness is repaid during the 30 Business Day period commencing upon the end of any applicable grace period for such Payment Default or the occurrence of such acceleration,
as the case may be, any Default or Event of Default (but not any acceleration of the Securities) caused by such Payment Default or acceleration shall be automatically rescinded, so long as such rescission does not conflict with any judgment, decree
or applicable law;
(7) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief
in respect of the Company or a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a
Significant Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy Law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or a Significant Subsidiary or group of
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Restricted Subsidiaries that, taken together (as of the last audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary,
under any applicable Bankruptcy Law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as
of the last audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary, or of any substantial part of its or their property, or ordering the winding up or liquidation of its
or their affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(8) the commencement by the Company or a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of
the last audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary of a voluntary case or proceeding under any applicable Bankruptcy Law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it or them to the entry of a decree or order for relief in respect of the Company or in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it or them, or the filing by it or them of a petition or answer or consent seeking reorganization or relief under any applicable Bankruptcy Law, or the consent by it or them to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or a Significant Subsidiary or group of Restricted Subsidiaries that, taken
together (as of the last audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary or of any substantial part of its or their property, or the making by it or them of an
assignment for the benefit of creditors, or the admission by it or them in writing of its or their inability to pay its or their debts generally as they become due, or the taking of corporate action by the Company or a Significant Subsidiary or
group of Restricted Subsidiaries that, taken together (as of the last audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary in furtherance of any such action;
(9) any judgment or decree for the payment of money in an amount in excess of $75.0 million or its foreign currency equivalent
at the time is rendered against the Company or a Significant Subsidiary (to the extent not covered by insurance or indemnity or, if covered by insurance or indemnity, to the extent the insurer or indemnitor has not disclaimed coverage), which
judgments are not discharged, waived, bonded or stayed for a period of 60 days; or
(10) any Subsidiary Guarantee of any
Significant Subsidiary ceases to be in full force and effect (other than in accordance with the terms of such Subsidiary Guarantee and this Indenture) or is declared null and void and unenforceable or found to be invalid or any Subsidiary Guarantor
denies its liability under its Subsidiary Guarantee (other than by reason of release of a Subsidiary Guarantor from its Subsidiary Guarantee in accordance with the terms of this Indenture and the Subsidiary Guarantee).
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However, a default under clauses (3), (4) and (5) of this Section 6.1 will not
constitute an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the outstanding Securities notify the Company in writing and, in the case of a notice given by the Holders, the Trustee of the default and the
Company does not cure such default within the time specified in clauses (3), (4) and (5) of this Section 6.1 after receipt of such notice.
SECTION 6.2. Acceleration. If an Event of Default (other than an Event of Default described in Section 6.1(7) and (8)) occurs
and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in principal amount of the outstanding Securities by notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare
the principal of and accrued and unpaid interest, if any, on all the Securities to be due and payable. Upon such a declaration, such principal and interest shall be due and payable immediately. If an Event of Default described in Section 6.1(7)
and (8) relating to the Company occurs and is continuing, the principal of and accrued and unpaid interest, if any, on all the Securities will become and be immediately due and payable without any declaration or other act on the part of the
Trustee or any Holders.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of principal of or interest (including Additional Interest) on the Securities or to enforce the performance of any provision of the Securities, this Indenture or the
Subsidiary Guarantees.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4. Waiver of Past Defaults.
The Holders of a majority in principal amount of the outstanding Securities by written notice to the Trustee (with a copy to the Company, but the applicable waiver or rescission shall be effective when the notice is given to the Trustee) may
(a) waive, by their consent (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities), an existing Default or Event of Default and its consequences except (i) a Default or Event of
Default in the payment of the principal of or interest (including Additional Interest) on a Security or (ii) a Default or Event of Default in respect of a provision that under Section 9.2 cannot be amended without the consent of each
Securityholder affected and (b) rescind any acceleration with respect to the Securities and its consequences if (1) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all
existing Events of Default, other than the nonpayment of the principal of and interest (including Additional Interest) on the Securities that have become due solely by such declaration of acceleration, have been cured or waived. When a Default or
Event of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any consequent right.
SECTION 6.5. Control by Majority. The Holders of a majority in principal amount of the outstanding Securities may direct the time,
method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the
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Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, the Securities or the Subsidiary Guarantees or, subject to Sections 7.1 and 7.2, that
the Trustee determines is unduly prejudicial to the rights of other Securityholders or would involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. Prior to taking any such action hereunder, the Trustee shall be entitled to indemnification or security satisfactory to it against all losses and expenses caused by taking or not taking such action.
SECTION 6.6. Limitation on Suits. Subject to Section 6.7, a Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) such Holder has previously given to the Trustee written notice stating that an
Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the outstanding Securities have
requested that the Trustee pursue the remedy;
(3) such Holders have offered the Trustee reasonable security or indemnity
satisfactory to it against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60
days after receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal
amount of the outstanding Securities have not given the Trustee a direction inconsistent with such request within such 60-day period.
A
Securityholder may not use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over another Securityholder (it being understood that the Trustee does not have an affirmative duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such Securityholders).
SECTION 6.7. Rights of Holders to Receive
Payment. Notwithstanding any other provision of this Indenture (including Section 6.6), the right of any Holder to receive payment of principal of or interest (including Additional Interest) on the Securities held by such Holder, on or
after the respective due dates expressed or provided for in the Securities, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default specified in clause (1) or (2) of Section 6.1 occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts
provided for in Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses,
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disbursements and advances of the Trustee, its agents and counsel) and the Securityholders allowed in any judicial proceedings relative to the Company or its Subsidiaries or its or their
respective creditors or properties and, unless prohibited by law or applicable regulations, may be entitled and empowered to participate as a member of any official committee of creditors appointed in such matter and may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.7.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 6.10. Priorities.
(a) If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due to it under this Indenture, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
SECOND: to Holders
of Securities for amounts due and unpaid on the Securities for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal and interest (including Additional
Interest), respectively; and
THIRD: to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Securities pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding principal amount of the Securities.
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ARTICLE VII
TRUSTEE
SECTION 7.1. Duties
of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it
by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates, opinions or orders furnished to the Trustee and conforming to the requirements of this
Indenture, the Securities or the Subsidiary Guarantees, as applicable. However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether or not they conform to the requirements of this Indenture, the Securities or the Subsidiary Guarantees, as the case may be (but need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust
Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not
be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5; and
(4) no provision of this Indenture, the Securities or the Subsidiary Guarantees shall require the Trustee to expend or risk its
own funds or otherwise incur financial liability in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or
adequate indemnity or security against such risk or liability is not reasonably assured to it.
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(d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA.
(h) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by two Officers of the Company.
SECTION 7.2. Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document (whether in its original or facsimile form) reasonably believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company, and
the Trustee shall incur no liability or additional liability of any kind (absent any willful misconduct or negligence) by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officers’ Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers, unless the Trustee’s conduct constitutes willful misconduct or negligence.
(e) The
Trustee may consult with counsel of its selection, and the advice or Opinion of Counsel with respect to legal matters relating to this Indenture, the Securities or the Subsidiary Guarantees shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it hereunder or under the Securities or the Subsidiary Guarantees in good faith and in accordance with the advice or opinion of such counsel.
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(f) The Trustee shall not be deemed to have notice of any Default or Event of Default or whether
any entity or group of entities constitutes a Significant Subsidiary unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or of any such Significant Subsidiary is
received by the Trustee at the corporate trust office of the Trustee specified in Section 12.2, and such notice references the Securities and this Indenture.
(g) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder.
(h) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, the Securities or the
Subsidiary Guarantees at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities which may be incurred therein or thereby.
(i) The Trustee shall not be deemed to have knowledge of any fact or matter
unless such fact or matter is known to a Trust Officer of the Trustee.
(j) Whenever in the administration of this Indenture, the
Securities or the Subsidiary Guarantees the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder or thereunder, the Trustee (unless other evidence be herein specifically
prescribed) may request and in the absence of bad faith or willful misconduct on its part, conclusively rely upon an Officers’ Certificate.
(k) In no event shall the Trustee be responsible or liable for any special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(l) The parties hereto acknowledge, in accordance with Section 326 of the Patriot Act, that the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The
Company and the Subsidiary Guarantors agree that they will provide the Trustee with all such information as it may reasonably request in order to satisfy the requirements or its obligations under the Patriot Act.
(m) The Trustee will be under no obligation to exercise any of the rights or powers under this Indenture, the Securities or the Subsidiary
Guarantees at the request or direction of any of the Holders unless such Holders have offered the Trustee indemnity or security satisfactory to it against loss or expense.
(n) Any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Order and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution.
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(o) The Trustee shall not be required to give any bond or surety in respect of the performance of
its powers and duties hereunder.
(p) The Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
SECTION 7.3.
Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company, the Subsidiary Guarantors or their Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent or Registrar may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11. In addition, the Trustee shall be permitted to engage in transactions with the Company;
provided, however, that if the Trustee acquires any conflicting interest under the TIA, the Trustee must (i) eliminate such conflict within 90 days of acquiring such conflicting interest, (ii) apply to the SEC for permission
to continue acting as Trustee or (iii) resign.
SECTION 7.4. Trustee’s Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture, the Subsidiary Guarantees or the Securities, shall not be accountable for the Company’s use of the proceeds from the sale of the Securities, shall not be
responsible for the use or application of any money received by any Paying Agent other than the Trustee or any money paid to the Company pursuant to the terms of this Indenture and shall not be responsible for any statement of the Company in this
Indenture or in any document issued in connection with the sale of the Securities or in the Securities other than the Trustee’s certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge
thereof, the Trustee shall send to each Securityholder notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security (including
payments pursuant to the optional redemption or required repurchase provisions of such Security), the Trustee may withhold the notice if and so long as the Trustee in good faith determines that withholding the notice is in the interests of
Securityholders.
SECTION 7.6. Reports by Trustee to Holders. Within 60 days after each April 1 beginning April 1, 2015,
the Trustee shall send to each Securityholder a brief report dated as of such April 1 that complies with TIA § 313(a) if and to the extent required thereby. The Trustee also shall comply with TIA § 313(b) and TIA § 313(c).
A copy of each report at the time it is sent to Securityholders shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee whenever the Securities become listed on any stock exchange and of any delisting thereof and the Trustee shall comply with TIA § 313(d).
SECTION 7.7. Compensation and Indemnity. The Company shall pay to the Trustee from time to time such compensation for its services
hereunder and under the Securities and the Subsidiary Guarantees as the Company and the Trustee shall from time to time agree in writing.
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The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including, but not limited to, costs of collection, costs of preparing reports, certificates and other documents, costs of preparation and sending of notices to Securityholders. Such expenses shall
include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Company shall indemnify the Trustee against any and all loss, liability, damages, claims or expense
(including reasonable attorneys’ fees and expenses) incurred by it without willful misconduct or negligence on its part in connection with the acceptance and administration of this trust and the performance of its duties hereunder and under the
Securities and the Subsidiary Guarantees, including the costs and expenses of enforcing this Indenture (including this Section 7.7), the Securities and the Subsidiary Guarantees and of defending itself against any claims (whether asserted by
any Securityholder, the Company, any Subsidiary Guarantor or otherwise). The Trustee shall notify the Company promptly of any claim for which it may seek indemnity of which it has received written notice. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder except to the extent the Company is prejudiced thereby. The Company shall defend the claim and the Trustee shall provide reasonable cooperation at the Company’s expense in the
defense. The Trustee may have separate counsel and the Company shall pay the fees and expenses of such counsel; provided that the Company shall not be required to pay the fees and expenses of such separate counsel if it assumes the
Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no conflict of interest between the Company and the Trustee in connection with such defense.
To secure the Company’s payment Obligations in this Section 7.7, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Securities. Such lien shall survive the satisfaction and discharge of this Indenture. The Trustee’s right to
receive payment of any amounts due under this Section 7.7 shall not be subordinate to any other liability or Indebtedness of the Company.
The Company’s payment obligations pursuant to this Section shall survive the discharge of this Indenture. Without prejudice to any other
rights available to the Trustee under applicable law, when the Trustee incurs expenses after the occurrence of a Default specified in clause (7) or clause (8) of Section 6.1, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at any time by so notifying
the Company in writing. The Holders of a majority in principal amount of the Securities may remove the Trustee by so notifying the removed Trustee in writing and may appoint a successor Trustee with the Company’s written consent, which consent
will not be unreasonably withheld. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with
Section 7.10 hereof or TIA §310;
(2) the Trustee is adjudged bankrupt or insolvent;
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(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee as described in the preceding paragraph, or if a vacancy exists in the office of the Trustee for any other reason (the Trustee in such event being referred to herein as the retiring Trustee), the
Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor
Trustee shall send a notice of its succession to Securityholders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of at least 10% in principal amount of the Securities may petition, at the Company’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, unless the Trustee’s duty to resign is stayed as provided in TIA § 310(b),
any Securityholder, who has been a bona fide holder of a Security for at least six months, may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 shall
continue for the benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor
Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the
trusts created by this Indenture, any of the Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the
Trustee; provided that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Securities in the name of any predecessor Trustee shall only apply to its successor or successors by merger, consolidation
or conversion.
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SECTION 7.10. Eligibility; Disqualification. This Indenture shall always have a Trustee
that satisfies the requirements of TIA § 310(a)(1), (2) and (5) in every respect. The Trustee shall have a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA § 310(b); provided, however, that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against the Company. The Trustee shall comply with TIA § 311(a), excluding any
creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.
SECTION 7.12. Trustee’s Application for Instruction from the Company. Any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on or after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days
after the date any Officer of the Company actually receives such application, unless any such Officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the
Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
ARTICLE
VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities; Defeasance.
(a) Subject to Section 8.1(c), when (i)(x) all Securities that have been authenticated (other than Securities replaced or paid pursuant
to Section 2.10 and Securities for whose payment money has been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust), have been delivered to the Trustee for
cancellation or (y) all outstanding Securities not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year by reason of the giving of a notice of redemption or otherwise,
and the Company or any Subsidiary Guarantor has irrevocably deposited or caused to be deposited with the Trustee, as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, Government Securities, or a combination thereof,
in such amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Securities not theretofore delivered to the Trustee for cancellation for principal and interest on, the
Securities to the date of Stated Maturity or redemption (provided that if such redemption is made as provided in the third paragraph of paragraph 5 of the Securities, (x) the amount of cash in U.S. dollars, Government Securities, or a
combination thereof, that must be irrevocably deposited will be determined using an assumed Applicable Premium calculated as of the date of
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such deposit and (y) the depositor must irrevocably deposit or cause to be deposited additional money in trust on the Redemption Date as necessary to pay the Applicable Premium as determined
by such Redemption Date); (ii) in respect of clause (i)(y), no Event of Default has occurred and is continuing on the date of the deposit (other than an Event of Default resulting from the borrowing of funds to be applied to such deposit and
any similar deposit relating to other Indebtedness and, in each case, the granting of Liens to secure such borrowings) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the
Company or any Subsidiary Guarantor is a party or by which the Company or any Subsidiary Guarantor is bound (other than with respect to the borrowing of funds to be applied concurrently to make the deposit required to effect such satisfaction and
discharge and any similar concurrent deposit relating to other Indebtedness, and in each case the granting of Liens to secure such borrowings); (iii) the Company has paid or caused to be paid all sums payable by it under this Indenture; and
(iv) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of such Securities at Stated Maturity or on the Redemption Date, as the case may be, then the Trustee
shall acknowledge satisfaction and discharge of this Indenture on demand of the Company (accompanied by an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent specified herein relating to the satisfaction and
discharge of this Indenture have been complied with) and at the cost and expense of the Company. If Government Securities shall have been deposited in connection with such satisfaction and discharge, then as a further condition to such satisfaction
and discharge, the Trustee shall have received a certificate from an accounting, appraisal or investment banking firm of national standing to the effect set forth in Section 8.2(1).
(b) Subject to Sections 8.1(c) and 8.2, the Company at any time may terminate (i) all of its obligations under the Securities and this
Indenture (“legal defeasance option”), and after giving effect to such legal defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) its obligations under
Sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.8, 3.9, 3.10, 3.11, 3.14 and 3.15 and clause (3) of the first paragraph of Section 4.1), and the Company may omit to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and
such omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Section 6.1(3), Section 6.1(4), Section 6.1(5) (to the extent applicable to any defeased covenants), Section 6.1(6),
Section 6.1(7) (with respect to Significant Subsidiaries), Section 6.1(8) (with respect to Significant Subsidiaries) and Section 6.1(9), and the events specified in such Sections shall no longer constitute an Event of Default (the
preceding clause (ii) being referred to as the “covenant defeasance option”), but except as specified above, the remainder of this Indenture and the Securities shall be unaffected thereby. The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance option. If the Company exercises its legal defeasance or its covenant defeasance option, the Subsidiary Guarantees in effect at such time shall terminate.
If the Company exercises its legal defeasance option, payment of the Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may not be accelerated because of an Event of Default
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specified in Section 6.1(3), 6.1(4), 6.1(5) (to the extent applicable to any of Sections 3.2, 3.3, 3.4, 3.6, 3.8, 3.11 and 3.15), Section 6.1(6), Section 6.1(7) (with respect only
to Significant Subsidiaries), Section 6.1(8) (with respect only to Significant Subsidiaries) or Section 6.1(9) or because of the failure of the Company to comply with clause (3) of the first paragraph of Section 4.1.
Upon satisfaction of the conditions set forth herein (including the receipt by the Trustee of an Officers’ Certificate and an Opinion of
Counsel stating that all conditions precedent to the discharge of such obligations have been satisfied) and upon request and expense of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates.
(c) Notwithstanding the provisions of Sections 8.1(a) and (b) to the extent relating to a legal defeasance, the
Company’s Obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.10, 2.11, 2.12, 2.13, 3.12, 3.13, 3.14, 3.16, 3.17, 7.7 and 7.8 and in this Article VIII shall survive until the Securities have been paid in full. Thereafter, the Company’s
obligations in Sections 7.7, 8.4 and 8.5 shall survive.
SECTION 8.2. Conditions to Defeasance. The Company may exercise its legal
defeasance option or its covenant defeasance option only if:
(1) the Company or a Subsidiary Guarantor irrevocably
deposits in trust with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, Government Securities, or a combination of cash in U.S. dollars and Government Securities, in amounts as will be sufficient, in the opinion of an
accounting, appraisal or investment banking firm of national standing, to pay the principal of, and interest on, the outstanding Securities on the stated date for payment thereof or on the applicable Redemption Date, as the case may be, and the
Company must specify whether the Securities are being defeased to such stated date for payment or to a particular Redemption Date (provided that if such redemption is made as provided in the third paragraph of paragraph 5 of the Securities,
(x) the amount of cash in U.S. dollars, Government Securities, or a combination thereof, that must be irrevocably deposited will be determined using an assumed Applicable Premium calculated as of the date of such deposit and (y) the
depositor must irrevocably deposit or cause to be deposited additional money in trust on the Redemption Date as necessary to pay the Applicable Premium as determined by such Redemption Date);
(2) in the case of legal defeasance, the Company has delivered to the Trustee an Opinion of Counsel (subject to customary
assumptions and exclusions) reasonably acceptable to the Trustee confirming that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change
in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the respective outstanding Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of such legal defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
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(3) in the case of covenant defeasance, the Company has delivered to the Trustee
an Opinion of Counsel (subject to customary assumptions and exclusions) reasonably acceptable to the Trustee confirming that the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(4) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness), and the granting of Liens securing such borrowings);
(5) such legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under,
any material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(6) the Company has delivered to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(7) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which Opinion of Counsel
may be subject to customary assumptions and exclusions), each stating that all conditions precedent relating to the legal defeasance or the covenant defeasance have been complied with.
SECTION 8.3. Application of Trust Money. The Trustee shall hold in trust all money or Government Securities (including proceeds
thereof) deposited with it pursuant to this Article VIII. It shall apply the deposited money and the money from Government Securities through the Paying Agent and in accordance with this Indenture and the Securities to the Holders of the Securities
of all sums due in respect of the payment of principal of, and accrued interest on, the Securities.
SECTION 8.4. Repayment to the
Company. The Trustee and the Paying Agent shall promptly turn over to the Company upon request any excess money, Government Securities or other securities held by them upon payment of all the Obligations under this Indenture.
Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal of or interest on the Securities that remains unclaimed by the Holders thereof for two years, and, thereafter, Securityholders entitled to the money must look only to the Company for payment as unsecured general
creditors unless an abandoned property law designates another Person, and the Trustee and the Paying Agent shall have no further liability with respect to such money.
SECTION 8.5. Indemnity for Government Securities. The Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited Government Securities or the principal and interest received on such Government Securities.
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SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with this Article VIII by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company and each Subsidiary Guarantor under this Indenture, the Securities and the Subsidiary Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or Government Securities in accordance with this Article VIII; provided, however, that, if the Company or the Subsidiary Guarantors have made any payment of principal or
interest (including Additional Interest) on any Securities because of the reinstatement of their obligations, the Company or Subsidiary Guarantors, as the case may be, shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or Government Securities held by the Trustee or Paying Agent.
The Trustee’s rights under this Article
VIII shall survive termination of this Indenture.
ARTICLE IX
AMENDMENTS
SECTION 9.1.
Without Consent of Holders. The Company, the Subsidiary Guarantors and the Trustee may amend or supplement this Indenture, the Securities and the Subsidiary Guarantees without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a successor of the obligations of the Company or any Subsidiary Guarantor under this
Indenture and the Securities;
(3) to provide for or facilitate the issuance of uncertificated Securities in addition to or
in place of certificated Securities;
(4) to add Guarantees with respect to the Securities (including any Subsidiary
Guarantee) as provided in this Indenture or otherwise, or to evidence the release of any Subsidiary Guarantor from its Subsidiary Guarantee, as provided in this Indenture;
(5) to secure the Securities or the Subsidiary Guarantees;
(6) to add covenants of the Company for the benefit of the Holders or to surrender any right or power herein conferred upon the
Company or a Subsidiary Guarantor, including to comply with the requirements of the SEC or DTC in order to maintain the transferability of the Securities pursuant to Rule 144A or Regulation S;
(7) to make any change that does not adversely affect the rights under this Indenture of any Securityholder;
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(8) to comply with any requirement of the SEC in connection with any required
qualification of this Indenture under the TIA;
(9) to provide for the issuance of Additional Securities in accordance with
the limitations set forth in this Indenture as of the Issue Date;
(10) to evidence and provide for the acceptance of an
appointment under this Indenture of a successor Trustee; or
(11) to conform the text of this Indenture, the Securities or
the Subsidiary Guarantees to any provision of the “Description of notes” contained in the Offering Memorandum, as certified to the Trustee in an Officers’ Certificate.
SECTION 9.2. With Consent of Holders. The Company, the Subsidiary Guarantors and the Trustee may amend or supplement this Indenture,
the Securities and the Subsidiary Guarantees without notice to any Securityholder but with the consent of the Holders of a majority in principal amount of the Securities then outstanding (including consents obtained in connection with a tender offer
or exchange offer for the Securities). Subject to the provisions of Section 6.4, any past default or compliance with the provisions of this Indenture, the Securities or the Subsidiary Guarantees may be waived with the consent of the Holders of
a majority in principal amount of the Securities then outstanding (including consents obtained in connection with a tender offer or exchange offer for the Securities). However, without the consent of each Securityholder affected, an amendment,
supplement or waiver may not:
(1) reduce the principal amount of Securities whose Holders must consent to an amendment or
waiver;
(2) reduce the rate of or extend the time for payment of interest on any Security;
(3) reduce the principal of or change the Stated Maturity of any Security;
(4) reduce the premium payable upon the redemption of any Security or alter or waive any of the provisions with respect to the
redemption or repurchase of the Securities (except provisions relating to minimum required notice of optional redemption or the provisions of Sections 3.5 and 3.9);
(5) make any Security payable in money other than that stated in the Security;
(6) impair the right of any Holder of the Securities to receive payment of principal of and interest on such Holder’s
Securities on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities;
(7) make any change in the amendment provisions which require each Holder’s consent or in the waiver provisions;
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(8) make the Securities or the Subsidiary Guarantees subordinated in right of
payment to any other obligation; or
(9) make any change in any Subsidiary Guarantee that could adversely affect such
Holder.
It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment or
supplement under this Section becomes effective, the Company shall send to Securityholders a notice briefly describing such amendment or supplement. The failure to give such notice to all Securityholders, or any defect therein, shall not impair or
affect the validity of an amendment or supplement under this Section.
SECTION 9.3. Compliance with Trust Indenture Act. Every
amendment or supplement to this Indenture, the Securities or the Subsidiary Guarantees shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A consent to an amendment, supplement or a waiver by a Holder of a Security
shall bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent or waiver is not made on the Security. Any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Security or portion of the Security if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective or
otherwise in accordance with any related solicitation documents. After an amendment, supplement or waiver becomes effective, it shall bind every Securityholder unless it makes a change described in any of clauses (1) through (10) of
Section 9.2, and in that case the amendment, supplement, waiver or other action shall bind each Securityholder who has consented to it and every subsequent Securityholder that evidences the same debt as the consenting Holder’s Securities.
An amendment, supplement or waiver under Section 9.2 shall become effective upon receipt by the Trustee of the requisite amount of consents, and in relation to any Securities evidenced by Global Securities, such consents need not be in written
form and may be evidenced by any electronic transmissions that comport with the applicable procedures of DTC.
The Company may, but shall
not be obligated to, fix a record date for the purpose of determining the Securityholders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is
fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Securityholders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall become valid or effective more than 120 days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an amendment, supplement or waiver changes the terms of a Security, the Trustee
may require the Holder of the Security to
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deliver it to the Trustee. The Trustee may place an appropriate notation on the Security regarding the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so
determine, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or to issue a new Security shall not affect the validity of
such amendment.
SECTION 9.6. Trustee to Sign Amendments. The Trustee shall sign any amendment or supplement authorized pursuant to
this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing any amendment or supplement the Trustee shall be
entitled to receive indemnity satisfactory to it and shall be provided with, and (subject to Sections 7.1 and 7.2) shall be fully protected in conclusively relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such
amendment or supplement is authorized or permitted by this Indenture and that such amendment or supplement is the legal, valid and binding obligation of the Company and any Subsidiary Guarantors, enforceable against them in accordance with its
terms, subject to customary exceptions, and complies with the provisions hereof (including Section 9.3).
ARTICLE X
GUARANTEE
SECTION 10.1.
Guarantee. Subject to the provisions of this Article X, each Subsidiary Guarantor hereby fully, unconditionally and irrevocably Guarantees, as primary obligor and not merely as surety, jointly and severally with each other Subsidiary
Guarantor, to each Holder of the Securities, to the extent lawful, and the Trustee the full and punctual payment when due, whether at final maturity, by acceleration, by redemption or otherwise, of the Obligations of the Company under this
Indenture. Each Subsidiary Guarantor agrees that such Obligations will rank equally in right of payment with other Indebtedness of such Subsidiary Guarantor, except to the extent such other Indebtedness is subordinate to such Obligations. Each
Subsidiary Guarantor further agrees (to the extent permitted by law) that such Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding
any extension or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of payment from and protest to the
Company of any of the Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Securities or the Obligations.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee constitutes a guarantee of payment when due (and not a guarantee of
collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations.
Except as set forth in Section 10.2, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim,
recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the
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foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by: (a) the failure of any Holder to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any security held by any Holder for the Obligations or any of them; (e) the failure of any Holder to exercise any
right or remedy against any other Subsidiary Guarantor; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Obligations; or (h) any other act or thing or
omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity.
Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the
Obligations or such Subsidiary Guarantor is released from its Subsidiary Guarantee as provided in Section 10.2. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary
Guarantor by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at final maturity, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and
will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing
and (ii) accrued and unpaid interest (including Additional Interest) on such Obligations then due and owing (but only to the extent not prohibited by law).
Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders, on the other hand,
(x) the maturity of the Obligations Guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the Obligations Guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantor
for the purposes of this Subsidiary Guarantee.
Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including
attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section.
Neither the Company
nor the Subsidiary Guarantors shall be required to make a notation on the Securities to reflect any Subsidiary Guarantee or any release, termination or discharge thereof, and any such notation shall not be a condition to the validity of any
Subsidiary Guarantee.
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SECTION 10.2. Limitation on Liability; Termination, Release and Discharge.
(a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each Subsidiary Guarantor hereunder will be
limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor (including any Guarantees under the Credit Facilities) and after giving effect to any collections from or payments
made by or on behalf of any other Subsidiary Guarantor in respect of the Obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution Obligations under this Indenture, result in the Obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under Federal or state law and not otherwise being void or voidable under any similar laws affecting the rights of creditors
generally.
(b) Each Subsidiary Guarantee by a Subsidiary Guarantor will be automatically and unconditionally released and discharged:
(1) in connection with any sale or other disposition of all or substantially all of the assets of that Subsidiary
Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition does not violate
Section 3.5;
(2) in connection with any sale or other disposition of such amount of Capital Stock of that Subsidiary
Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, including a disposition in connection with a Qualified Spin Transaction, if such sale or other
disposition does not violate Section 3.5, and the Subsidiary Guarantor ceases to be a Restricted Subsidiary of the Company as a result thereof;
(3) if the Company designates that Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with Section 3.15;
(4) upon legal defeasance or covenant defeasance pursuant to Article VIII;
(5) at such time as such Subsidiary Guarantor becomes an Immaterial Subsidiary of the Company; or
(6) as provided in Section 3.11.
Upon the Company’s request and at its expense, the Trustee will provide evidence of the release of any Subsidiary Guarantee,
provided the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Section 10.2 relating to the release of such Subsidiary Guarantee have
been complied with.
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Any released Subsidiary Guarantor will again provide a Subsidiary Guarantee if required to do so
pursuant to Section 3.11.
SECTION 10.3. Right of Contribution. Each Subsidiary Guarantor hereby agrees that to the extent
that any Subsidiary Guarantor shall have paid more than its proportionate share of any payment made on the obligations under the Subsidiary Guarantees, such Subsidiary Guarantor shall be entitled to seek and receive contribution from and against the
Company or any other Subsidiary Guarantor who has not paid its proportionate share of such payment, based on the respective net assets of all the Subsidiary Guarantors at the time of such payment, determined in accordance with GAAP. The provisions
of this Section 10.3 shall in no respect limit the obligations and liabilities of each Subsidiary Guarantor to the Trustee and the Holders, and each Subsidiary Guarantor shall remain liable to the Trustee and the Holders for the full amount
Guaranteed by such Subsidiary Guarantor hereunder.
SECTION 10.4. No Subrogation. Notwithstanding any payment or payments made by
each Subsidiary Guarantor hereunder, no Subsidiary Guarantor shall be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Company or any other Subsidiary Guarantor or Guarantee or right of offset held by the
Trustee or any Holder for the payment of the Obligations, nor shall any Subsidiary Guarantor seek or be entitled to seek any contribution or reimbursement from the Company or any other Subsidiary Guarantor in respect of payments made by such
Subsidiary Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the Obligations are paid in full. If any amount shall be paid to any Subsidiary Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Subsidiary Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Subsidiary Guarantor, and shall, forthwith
upon receipt by such Subsidiary Guarantor, be turned over to the Trustee in the exact form received by such Subsidiary Guarantor (duly indorsed by such Subsidiary Guarantor to the Trustee, if required), to be applied against the Obligations.
ARTICLE XI
[RESERVED]
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. Trust Indenture Act Controls. If and to the extent that any provision of this Indenture limits, qualifies or conflicts
with another provision which is included in this Indenture by reference to the TIA, such TIA provision shall control. Each Subsidiary Guarantor in addition to performing its obligations under its Subsidiary Guarantee shall perform such other
obligations as may be imposed upon it with respect to this Indenture under the TIA.
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SECTION 12.2. Notices. Any notice or other communication shall be in writing in the
English language and delivered in person, sent by facsimile, other electronic means, delivered by commercial courier service or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Company or to any Subsidiary Guarantor:
CONSOL Energy Inc.
CNX Center
1000 CONSOL Energy Drive
Canonsburg, PA 15317-6506
Attention: General Counsel
Telecopy: (724) 485-4837
Confirmation No.: (724) 485-4163
with a copy to:
Latham & Watkins LLP
811 Main Street, Suite 3700
Houston, Texas 77002
Attention:
David J. Miller
Telecopy No.: (713) 546-5401
Confirmation No.: (713) 546-7463; and
if to the Trustee, at its corporate trust office in New York, New York, which corporate trust office for purposes of this Indenture is at the
date hereof located at:
Wells Fargo Bank, National Association
150 East 42nd Street, 40th Floor
New York, New York 10017
Attention: Corporate Trust Services – Administrator for CONSOL Energy Inc.
Escrow and Municipal Solutions
Telecopy: (917) 260-1593
The Company, any Subsidiary Guarantor or the Trustee by written notice to the others may designate additional or different addresses for
subsequent notices or other communications.
Any notice or other communication to the Company or the Subsidiary Guarantors shall be deemed
to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if transmitted by electronic scan or facsimile; and five calendar days after mailing if sent by U.S. Postal Service registered or certified
mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Any notice or other communication to the Trustee shall be deemed delivered upon receipt by a Trust
Officer. Notices given by publication will be deemed given on the first date on which publication is made.
Any notice or other
communication to a Securityholder shall be mailed to the Securityholder at the Securityholder’s address as it appears in the Securities Register, or in any case where DTC or its nominee is the Securityholder, any notice or other communication
shall be
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given in accordance with DTC’s applicable procedures. Any notice or other communication to a Securityholder shall be sufficiently given if so mailed within the time prescribed or otherwise
delivered in accordance with the applicable procedures of DTC.
Failure to send a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication is given in the manner provided above, it is duly given, whether or not the addressee receives it, except that notices to the Trustee
shall be effective only upon receipt.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 12.3. Communication by Holders with other Holders. Securityholders may communicate pursuant to TIA § 312(b) with other
Securityholders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
SECTION 12.4. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture (except in connection with the original issuance of Securities on the date hereof), the Company shall furnish to the Trustee:
(1) an Officers’ Certificate in form reasonably satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 12.5. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in this Indenture shall include:
(1) a
statement that the individual making such certificate or opinion has read such covenant or condition;
(2) a brief
statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4)
a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
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In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officers’
Certificate or on certificates of public officials.
SECTION 12.6. When Securities Disregarded. In determining whether the Holders
of the required aggregate principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company, any Subsidiary Guarantor or any Affiliate of any of them shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which a Trust Officer actually knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be considered in any such determination.
SECTION 12.7. Rules
by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by, or at meetings of, Securityholders. The Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 12.8. Legal Holidays. A “Legal Holiday” is any day other than a Business Day. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 12.9. GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 12.10. No Personal Liability of Directors, Officers, Employees and
Stockholders. No director, officer, employee, manager, incorporator, member, partner or stockholder or other owner of Capital Stock of the Company or any of its Subsidiaries, as such, will have any liability for any obligations of the Company or
the Subsidiary Guarantors under the Securities, this Indenture or the Subsidiary Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of a Security by accepting the Security waives
and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities.
SECTION 12.11.
Successors. All agreements of the Company and each Subsidiary Guarantor in this Indenture and the Securities shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 12.12. Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is enough to prove this Indenture. The exchange of copies of this Indenture and of signature pages by facsimile of PDF transmission shall constitute effective execution and
delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signature of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
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SECTION 12.13. Qualification of Indenture. The Company has agreed to qualify this
Indenture under the TIA in accordance with the terms and conditions of the initial Registration Rights Agreement, and the Trustee shall be entitled to receive from the Company such evidence as it may reasonably request of such qualification.
SECTION 12.14. Table of Contents; Headings. The table of contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
SECTION 12.15. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, 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 12.16. Waiver of Jury
Trial. EACH OF THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 12.17. Consent to Jurisdiction. To the fullest extent
permitted by applicable law, the Company and the Subsidiary Guarantors hereby irrevocably submit to the jurisdiction of any competent Federal or state court located in the Borough of Manhattan in The City of New York, New York in any suit, action or
proceeding based on or arising out of or relating to this Indenture or any Securities and irrevocably agree, that all claims in respect of such suit, action or proceeding may be determined in any such court. The Company and the Subsidiary Guarantors
irrevocably waive, to the fullest extent permitted by law, any objection which they may have to the laying of the venue of any such suit, action or proceeding brought in an inconvenient forum.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed all as of
the date and year first written above.
|
|
|
| CONSOL ENERGY INC. |
|
|
| By: |
|
/s/ Stephen W. Johnson |
| Name: |
|
Stephen W. Johnson |
| Title: |
|
Executive Vice President and Chief Legal and Corporate Affairs Officer |
|
| The Subsidiary Guarantors identified on Schedule I hereto, as Subsidiary Guarantors: |
|
|
| By: |
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/s/ Stephen W. Johnson |
| Name: |
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Stephen W. Johnson |
| Title: |
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Authorized Signatory for each of the Guarantors listed on Schedule I hereto |
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| WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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as Trustee |
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| By: |
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/s/ Martin G. Reed |
| Name: |
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Martin G. Reed |
| Title: |
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Vice President |
SCHEDULE I
Subsidiary Guarantors
AMVEST Coal & Rail, L.L.C.
AMVEST Coal Sales, Inc.
AMVEST Corporation
AMVEST Gas Resources, Inc.
AMVEST Mineral Services, Inc.
AMVEST Minerals Company, L.L.C.
AMVEST Oil & Gas, Inc.
AMVEST West Virginia Coal, L.L.C.
Braxton-Clay
Land & Mineral, Inc.
Cardinal States Gathering Company
CNX Gas Company LLC
CNX Gas Corporation
CNX Land LLC
CNX Marine Terminals Inc.
CNX RCPC LLC
CNX Water
Assets LLC (f/k/a CONSOL of WV LLC)
Coalfield Pipeline Company
Conrhein Coal Company (by CONSOL Mining Holding Company LLC and MTB Inc., its partners)
CONSOL Amonate Facility LLC
CONSOL Amonate Mining Company LLC
CONSOL Buchanan Mining Company LLC
CONSOL Energy Holdings
LLC VI
CONSOL Energy Sales Company
CONSOL Financial Inc.
CONSOL Mining Company LLC
CONSOL Mining Holding Company LLC
CONSOL of Canada Inc.
CONSOL of Central Pennsylvania LLC
CONSOL of Kentucky Inc.
CONSOL of Ohio LLC
Consol Pennsylvania Coal Company LLC
Fola Coal Company, LLC
Glamorgan Coal Company, L.L.C.
Helvetia Coal Company
Island Creek Coal Company
Knox Energy, LLC
Laurel Run Mining Company
Leatherwood, Inc.
Little Eagle Coal Company, L.L.C.
MOB Corporation
MTB Inc.
Nicholas-Clay Land & Mineral, Inc.
Panda Bamboo Holdings, Inc.
Paros Corp.
Peters Creek Mineral Services, Inc.
R&PCC LLC
TEAGLE Company, L.L.C.
TECPART Corporation
Terra Firma Company
Terry Eagle Coal Company, L.L.C.
Terry Eagle Limited Partnership (by TEAGLE Company, LLC and TECPART Corporation, its general partners)
Vaughan Railroad Company
Windsor Coal Company
Wolfpen Knob Development Company
S-1
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Restricted Securities Legend]
[Depository Legend, if applicable]
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| No. [ ] |
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Principal Amount $[ ], as |
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revised by the Schedule of Increases and |
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Decreases in Global Security attached hereto |
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CUSIP NO. |
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ISIN: |
8.000% Senior Notes, Series A, due 2023
CONSOL Energy Inc., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of
[ ] Dollars, as revised by the Schedule of Increases and Decreases in Global Security attached hereto, on April 1, 2023.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Additional provisions of this Security are set forth on the other side of this Security.
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| CONSOL ENERGY INC. |
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| By: |
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| Name: |
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| Title: |
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A-1
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned Indenture.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as
Trustee,
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| By: |
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Authorized Signatory |
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Dated: |
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A-2
[FORM OF REVERSE SIDE OF NOTE]
CONSOL Energy Inc.
8.000% Senior
Notes, Series A, due 2023
CONSOL Energy Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on April 1 and October 1 of each year commencing October 1, 2015. Interest on the
Securities will accrue from the most recent date to which interest has been paid on the Securities or, if no interest has been paid, from March 30, 2015. The Company shall pay interest on overdue principal, and it shall pay interest on
overdue installments of interest, at the rate borne by the Securities to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
If an exchange offer (the “Exchange Offer”) registered under the Securities Act is not consummated or a shelf registration
statement (the “Shelf Registration Statement”) under the Securities Act with respect to resales of the Securities is not declared effective by the SEC or does not become automatically effective on or before the date that is 400 days
after the Issue Date in accordance with the terms of the Registration Rights Agreement, dated March 30, 2015 (the “Registration Rights Agreement”), among the Company, the Subsidiary Guarantors and the initial purchasers named
therein, the annual interest rate borne by the Securities shall be increased from the rate shown above by 1.00% per annum thereafter, until the Exchange Offer is completed or the Shelf Registration Statement is declared effective or becomes
automatically effective. The Holder of this Note is entitled to the benefits of such Registration Rights Agreement. Additional Interest shall be paid to the same Persons, in the same manner and at the same times as regular interest.
By no later than 11:00 a.m. (New York City time) on the date on which
any principal of, premium, if any, or interest on any Security is due and payable, the Company shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal, premium, if any, and/or interest (including
Additional Interest). The Company will pay interest (except Defaulted Interest) to the Persons who are registered Holders of Securities at the close of business on the March 15 or September 15 next preceding the interest payment date even
if Securities are cancelled, repurchased or redeemed after the record date and on or before the interest payment date. Holders must surrender Securities to a Paying Agent to collect principal payments. The Company will pay principal, premium, if
any, and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. Payments in respect of Securities represented by a Global Security (including principal, premium, if any, and
interest) will be made by the transfer of immediately available funds to the accounts specified by The Depository Trust Company or any successor depositary. The
A-3
Company will make all payments in respect of a Definitive Security (including principal, premium, if any, and interest) by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, at the Company’s option, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if the Holder elects payment by wire
transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its
discretion).
| 3. |
Paying Agent and Registrar |
Initially, Wells Fargo Bank, National Association (the
“Trustee”) will act as Trustee, Paying Agent and Registrar. The Company may appoint and change any Paying Agent or Registrar without notice to any Securityholder. The Company or any of its Restricted Subsidiaries may act as Paying
Agent or Registrar.
The Company has issued the Securities under an Indenture dated as of
March 30, 2015 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”), among the Company, the Subsidiary Guarantors and the Trustee. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. Terms defined in the Indenture and used herein but not defined herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all terms and provisions of the Indenture, and Securityholders are referred to the Indenture and the Trust Indenture Act for a statement of those terms.
The Securities are senior obligations of the Company. The aggregate principal amount of Securities that may be authenticated and delivered
under the Indenture is unlimited. This Security is one of the 8.000% Senior Notes, Series A, due 2023 referred to in the Indenture. The Securities include (i) $500,000,000 aggregate principal amount of the Company’s 8.000% Senior Notes,
Series A, due 2023 issued under the Indenture on March 30, 2015 (herein called “Initial Securities”), (ii) if and when issued, additional 8.000% Senior Notes, Series A, due 2023 or 8.000% Senior Notes, Series B, due 2023
of the Company that may be issued from time to time under the Indenture subsequent to March 30, 2015 (herein called “Additional Securities”) as provided in Section 2.1(a) of the Indenture and (iii) if and when issued,
the Company’s 8.000% Senior Notes, Series B, due 2023 that may be issued from time to time under the Indenture in exchange for Initial Securities or Additional Securities in an offer registered under the Securities Act as provided in a
Registration Rights Agreement (herein called “Exchange Securities”). The Initial Securities, Additional Securities and Exchange Securities are treated as a single class of securities under the Indenture. The Indenture imposes
certain limitations on the incurrence of indebtedness, the making of restricted payments, the sale of assets and subsidiary stock, the incurrence of certain liens, the entering into of affiliate transactions, the entering into of agreements that
restrict distribution from restricted subsidiaries and the consummation of mergers and consolidations. The Indenture also imposes requirements with respect to the provision of financial information and the provision of Guarantees of the Securities
by certain subsidiaries.
A-4
To Guarantee the due and punctual payment of the principal, premium, if any, and interest
(including post-filing or post-petition interest) on the Securities and all other amounts payable by the Company under the Indenture, the Securities and the applicable Registration Rights Agreement when and as the same shall be due and payable,
whether at Stated Maturity, by acceleration or otherwise, according to the terms of the Securities and the Indenture, the Subsidiary Guarantors have unconditionally Guaranteed (and future guarantors, together with the Subsidiary Guarantors, will
unconditionally Guarantee), jointly and severally, such obligations on a senior basis pursuant to the terms of the Indenture.
Except as set forth below or in the last paragraph of Section 3.9 of
the Indenture, the Securities will not be redeemable at the option of the Company prior to April 1, 2018. On and after such date, the Securities will be redeemable, at the Company’s option, in whole or in part, at any time upon notice as
provided in the Indenture, at the following redemption prices (expressed in percentages of principal amount), plus accrued and unpaid interest (including Additional Interest), if any, to, but not including, the applicable Redemption Date (subject to
the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) if redeemed during the 12-month period commencing on April 1 of the years set forth below:
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| Period |
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Redemption Price |
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| 2018 |
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106.000 |
% |
| 2019 |
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104.000 |
% |
| 2020 |
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102.000 |
% |
| 2021 and thereafter |
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100.000 |
% |
In addition, prior to April 1, 2018, the Company may at its option on one or more occasions redeem the
Securities (which includes Additional Securities, if any) in an aggregate principal amount not to exceed 35% of the aggregate principal amount of the Securities (which includes Additional Securities, if any) originally issued at a redemption price
(expressed as a percentage of principal amount) of 108.000%, plus accrued and unpaid interest to, but not including, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant
interest payment date), with an amount of cash equal to the Net Cash Proceeds from one or more Stock Offerings; provided that:
(1) at least 65% of the aggregate principal amount of the Securities issued on the Issue Date remains outstanding immediately
after each such redemption (excluding Securities held by the Company or its Affiliates); and
(2) each such redemption
occurs within 180 days of the date of consummation of the related Stock Offering.
In addition, at any time and from time to time prior to
April 1, 2018, upon prior notice as provided in the Indenture, the Company may redeem the Securities, in whole or in part, at a redemption price equal to 100% of the principal amount thereof plus the Applicable Premium, plus accrued and unpaid
interest, if any, to, but not including, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).
A-5
Notice of any redemption shall be given pursuant to Section 5.5 of the Indenture not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, except that redemption notices may be given more than 60 days prior to a Redemption Date if the notice is issued in connection with a legal
defeasance or covenant defeasance of the Securities or a satisfaction and discharge of the Indenture pursuant to Article VIII. Any redemption or notice of redemption may, at the Company’s discretion, be subject to one or more conditions
precedent. Once notice of redemption without any condition precedent has been given, the Securities or portions of the Securities so to be redeemed without a condition precedent shall, on the Redemption Date, become due and payable at the redemption
price therein specified (together with accrued interest, if any, to the Redemption Date).
If the Redemption Date is on or after an
interest record date and on or before the related interest payment date, the accrued and unpaid interest (including Additional Interest), if any, will be paid on such Redemption Date to the Person in whose name the Security is registered at the
close of business on such record date, and no Additional Interest will be payable to Holders whose Securities will be subject to redemption by the Company.
In the case of any partial redemption, selection of the Securities for redemption will be made by the Trustee in accordance with
Section 6.5 of the Indenture. If any Security is to be redeemed in part only, the notice of redemption relating to such Security shall state the portion of the principal amount thereof to be redeemed. A new Security in principal amount equal to
the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Security. On and after the Redemption Date, interest will cease to accrue on Securities or portions thereof called for redemption as
long as the Company has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to the Indenture.
The Company is not required to make any mandatory redemption or sinking fund payments with respect to the Securities.
The Company and its Subsidiaries may acquire Securities by means other than a redemption or required repurchase, whether by tender offer, open
market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of the Indenture.
(a) If a Change of Control occurs, unless the Company has
exercised its right to redeem all of the Securities as described under paragraph 5 above or another of the exceptions set forth in Section 3.9 of the Indenture applies, each Holder will have the right to require the Company to repurchase from
each Holder all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Securities at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) as provided in, and subject to the terms of, the Indenture.
(b) If the Company or any Restricted Subsidiary consummates an Asset Disposition, the Company may be obligated to make an Asset Disposition
Offer to all Holders and all holders of certain other Pari Passu Indebtedness, on the terms and subject to the conditions in Section 3.5.
A-6
| 7. |
Denominations; Transfer; Exchange |
The Securities are in registered form without coupons
in denominations of principal amount of $2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay a sum sufficient to cover any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange of any Security (A) for a period
(1) of 15 days before giving notice of any redemption of Securities or (2) beginning 15 days before an interest payment date and ending on such interest payment date or (B) selected for redemption, except the unredeemed portion of any
Security being redeemed in part.
The registered Holder of this Security shall be treated as the
owner of it for all purposes.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company for payment
as unsecured general creditors unless an abandoned property law designates another Person and not to the Trustee for payment.
Subject to certain exceptions and conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the Securities and the Indenture if the Company deposits with the Trustee money or Government Securities for the payment of principal and interest on the Securities to redemption
or final maturity, as the case may be.
| 11. |
Amendment, Supplement, Waiver |
Subject to certain exceptions set forth in the Indenture,
(i) the Indenture, the Securities or the Subsidiary Guarantees may be amended or supplemented by the Company, the Subsidiary Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended without the consent of each Securityholder affected) or noncompliance with any provision may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Securities. Subject to certain exceptions
A-7
set forth in the Indenture, without the consent of any Securityholder, the Company, the Subsidiary Guarantors and the Trustee may amend or supplement the Indenture, the Securities or the
Subsidiary Guarantees to cure any ambiguity, omission, defect or inconsistency, to comply with Article IV of the Indenture, to provide for uncertificated Securities in addition to, or in place of, certificated Securities, to add Guarantees with
respect to the Securities, or release a Subsidiary Guarantor from its Subsidiary Guarantee, provided that the release is in accordance with the Indenture, to secure the Securities or the Subsidiary Guarantees, to add additional covenants of
the Company for the benefit of the Holders or to surrender any right or power conferred on the Company or a Subsidiary Guarantor, to make any change that does not adversely affect the rights of any Securityholder, to comply with any requirement of
the SEC in connection with qualifying the Indenture under the Trust Indenture Act, to provide for the issuance of Additional Securities in accordance with the limitations set forth in the Indenture, to evidence or provide for the appointment of a
successor Trustee or to conform the text of the Indenture, the Securities or the Subsidiary Guarantees to any provision of the “Description of notes” contained in the Indenture.
| 12. |
Defaults and Remedies |
Section 6.1 of the Indenture sets forth several Events of
Default, including: (i) default in any payment of interest (including any Additional Interest required by the applicable Registration Rights Agreement), on any Security when due, continued for 30 days; (ii) default in the payment of
principal on any Security when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise; and (iii) certain events of bankruptcy, insolvency or reorganization of the Company or
a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary.
If an Event of Default (other than an Event of Default described in (iii) of the preceding paragraph) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in principal amount of the outstanding Securities by notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare all the Securities to be
due and payable immediately. If an Event of Default described in clause (iii) of the preceding paragraph occurs and is continuing, the principal of and accrued and unpaid interest (including Additional Interest) on all the Securities will
become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
Securityholders
may not enforce the Indenture or the Securities except as provided in the Indenture. Subject to the provisions of the Indenture relating to the duties of the Trustee if an Event of Default exists, the Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of the Securities may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal, premium, if any, or interest) if it determines that withholding notice is in their interests.
A-8
| 13. |
Trustee Dealings with the Company |
Subject to certain limitations set forth in the
Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 14. |
No personal liability of directors, officers, employees and stockholders |
No director,
officer, employee, manager, incorporator, member, partner or stockholder or other owner of Capital Stock of the Company or any of its Subsidiaries, as such, will have any liability for any obligations of the Company or the Subsidiary Guarantors
under the Securities, the Indenture or the Subsidiary Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of a Security by accepting the Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Securities.
This Security shall not be valid until an authorized signatory of the
Trustee (or an Authenticating Agent acting on its behalf) manually signs the certificate of authentication on the other side of this Security.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
| 17. |
CUSIP, Common Code and ISIN Numbers |
The Company has caused CUSIP and ISIN numbers to be
printed on the Securities, and the Trustee may use CUSIP, Common Code and ISIN numbers, if applicable, in notices of redemption or purchase as a convenience to Securityholders. No representation is made as to the accuracy of such numbers either as
printed on the Securities or as contained in any notice of redemption or purchase and reliance may be placed only on the other identification numbers placed thereon.
This Security shall be governed by, and construed in accordance with, the
laws of the State of New York.
A-9
| 19. |
Copies of Indenture and Registration Rights Agreement |
The Company will furnish to any
Securityholder upon written request and without charge to the Securityholder a copy of the Indenture, which has in it the text of this Security, and a copy of the Registration Rights Agreement. Requests may be made to:
CONSOL Energy Inc.
CNX Center
1000 CONSOL Energy Drive
Canonsburg, PA 15317-6506
Attention: General Counsel
The parties hereto acknowledge that in accordance with Section 326 of
the Patriot Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to the Indenture agree that they will
provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the Patriot Act.
A-10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s Social Security or Tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Company. The agent may substitute another to act for him.
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| Signature Guarantee |
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| (Signature must be guaranteed) |
Sign exactly as your name appears on
the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to SEC Rule 17Ad-15.
The
undersigned hereby certifies that it ¨ is / ¨ is not an Affiliate of the Company and that, to its knowledge, the proposed transferee ¨ is / ¨ is not an Affiliate of the Company.
In
connection with any transfer or exchange of any of the Securities evidenced by this certificate occurring prior to the date that is one year (or 40 days in the case of any Regulation S Notes) after the later of the date of original issuance of such
Securities and the last date, if any, on which such Securities were owned by the Company or any Affiliate of the Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
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| (1) |
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acquired for the undersigned’s own account, without transfer; or |
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| (2) |
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transferred to the Company or any Subsidiary thereof; or |
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| (3) |
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transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or |
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| (4) |
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transferred pursuant to an effective registration statement under the Securities Act; or |
A-11
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| (5) |
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transferred pursuant to and in compliance with Regulation S under the Securities Act; or |
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| (6) |
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transferred to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), that has furnished to the Trustee a signed letter containing certain representations and
agreements (the form of which letter appears as Section 2.8 of the Indenture); or |
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| (7) |
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transferred pursuant to another available exemption from the registration requirements of the Securities Act. |
Unless one of the boxes is checked, the Trustee will refuse to register any of the Securities
evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Company may require, prior to registering any such transfer of
the Securities, in its sole discretion, such legal opinions, certifications and other information as the Company may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act, such as the exemption provided by Rule 144 under the Securities Act.
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| Signature Guarantee: |
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| (Signature must be guaranteed) |
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Signature |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to SEC Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF BOX (3) ABOVE IS
CHECKED.
The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
A-12
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
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| Date of increase/decrease |
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Amount of
decrease in
Principal Amount
of this Global
Security |
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Amount of
increase in
Principal Amount
of this Global
Security |
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Principal Amount
of this Global
Security following
such decrease or
increase |
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Signature of
authorized
signatory of
Trustee or
Securities
Custodian |
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A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Security purchased by the Company pursuant to Section 3.5 or 3.9 of the Indenture, check either box:
¨ 3.5
¨ 3.9
If you want to elect to have
only part of this Security purchased by the Company pursuant to Section 3.5 or Section 3.9 of the Indenture, state the amount in principal amount (must be in denominations of $2,000 or an integral multiple of $1,000 in excess thereof):
$ and specify the denomination or denominations (which shall not be less than the minimum authorized denomination) of the Securities to be issued to the Holder for the portion of the within Security
not being repurchased (in the absence of any such specification, one such Security will be issued for the portion not being repurchased): $ .
(Sign exactly as your name appears on the other side of the Security)
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| Signature Guarantee |
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| (Signature must be guaranteed) |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature guarantee medallion program), pursuant to SEC Rule 17Ad-15.
A-14
EXHIBIT B
[FORM OF FACE OF SERIES B NOTE]
[Depository Legend, if applicable]
[Original Issue Discount Legend, if applicable]
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| No. [ ] |
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Principal Amount $[ ], as |
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revised by the Schedule of Increases and |
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Decreases in Global Security attached hereto |
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CUSIP NO. |
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ISIN: |
8.000% Senior Notes, Series B, due 2023
CONSOL Energy Inc., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of
[ ] Dollars, as revised by the Schedule of Increases and Decreases in Global Security attached hereto, on April 1, 2023.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Additional provisions of this Security are set forth on the other side of this Security.
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| CONSOL ENERGY INC. |
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| By: |
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| Name: |
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| Title: |
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B-1
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned Indenture.
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| WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, |
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| By: |
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Authorized Signatory |
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Dated: |
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B-2
[FORM OF REVERSE SIDE OF SERIES B NOTE]
CONSOL ENERGY INC.
8.000% Senior
Notes, Series B, due 2023
CONSOL Energy Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on April 1 and October 1 of each year commencing October 1, 2015. Interest on the
Securities will accrue from the most recent date to which interest has been paid on the Securities or, if no interest has been paid, from March 30, 2015. The Company shall pay interest on overdue principal, and it shall pay interest on
overdue installments of interest, at the rate borne by the Securities to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
By no later than 11:00 a.m. (New York City time) on the date
on which any principal of, premium, if any, or interest on any Security is due and payable, the Company shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal, premium, if any, and/or interest
(including Additional Interest). The Company will pay interest (except Defaulted Interest) to the Persons who are registered Holders of Securities at the close of business on the March 15 or September 15 next preceding the interest payment
date even if Securities are cancelled, repurchased or redeemed after the record date and on or before the interest payment date. Holders must surrender Securities to a Paying Agent to collect principal payments. The Company will pay principal,
premium, if any, and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. Payments in respect of Securities represented by a Global Security (including principal, premium, if
any, and interest) will be made by the transfer of immediately available funds to the accounts specified by The Depository Trust Company or any successor depositary. The Company will make all payments in respect of a Definitive Security (including
principal, premium, if any, and interest) by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Securities may also be made, at the Company’s option, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if the Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days
immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
| 3. |
Paying Agent and Registrar |
Initially, Wells Fargo Bank, National Association (the
“Trustee”) will act as Trustee, Paying Agent and Registrar. The Company may appoint and change any Paying Agent or Registrar without notice to any Securityholder. The Company or any of its Restricted Subsidiaries may act as Paying
Agent or Registrar.
B-3
The Company has issued the Securities under an Indenture dated as of
March 30, 2015 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”), among the Company, the Subsidiary Guarantors and the Trustee. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. The Securities are subject to all
terms and provisions of the Indenture, and Securityholders are referred to the Indenture and the Trust Indenture Act for a statement of those terms.
The Securities are senior obligations of the Company. The aggregate principal amount of Securities that may be authenticated and delivered
under the Indenture is unlimited. This Security is one of the 8.000% Senior Notes, Series B, due 2023 referred to in the Indenture. The Securities include (i) $500,000,000 aggregate principal amount of the Company’s 8.000% Senior Notes,
Series A, due 2023 issued under the Indenture on March 30, 2015 (herein called “Initial Securities”), (ii) if and when issued, additional 8.000% Senior Notes, Series A, due 2023 or 8.000% Senior Notes, Series B, due
2023 of the Company that may be issued from time to time under the Indenture subsequent to March 30, 2015 (herein called “Additional Securities”) as provided in Section 2.1(a) of the Indenture and (iii) if and when
issued, the Company’s 8.000% Senior Notes, Series B, due 2023 that may be issued from time to time under the Indenture in exchange for Initial Securities or Additional Securities in an offer registered under the Securities Act as provided in a
Registration Rights Agreement (herein called “Exchange Securities”). The Initial Securities, Additional Securities and Exchange Securities are treated as a single class of securities under the Indenture. The Indenture imposes
certain limitations on the incurrence of indebtedness, the making of restricted payments, the sale of assets and subsidiary stock, the incurrence of certain liens, the entering into of affiliate transactions, the entering into of agreements that
restrict distribution from restricted subsidiaries and the consummation of mergers and consolidations. The Indenture also imposes requirements with respect to the provision of financial information and the provision of Guarantees of the Securities
by certain subsidiaries.
To Guarantee the due and punctual payment of the principal, premium, if any, and interest (including post-filing
or post-petition interest) on the Securities and all other amounts payable by the Company under the Indenture, the Securities and the applicable Registration Rights Agreement applicable to the Securities when and as the same shall be due and
payable, whether at Stated Maturity, by acceleration or otherwise, according to the terms of the Securities and the Indenture, the Subsidiary Guarantors have unconditionally Guaranteed (and future guarantors, together with the Subsidiary Guarantors,
will unconditionally Guarantee), jointly and severally, such obligations on a senior basis pursuant to the terms of the Indenture.
B-4
Except as set forth below or in the last paragraph of Section 3.9 of
the Indenture, the Securities will not be redeemable at the option of the Company prior to April 1, 2018. On and after such date, the Securities will be redeemable, at the Company’s option, in whole or in part, at any time upon notice as
provided in the Indenture, at the following redemption prices (expressed in percentages of principal amount), plus accrued and unpaid interest (including Additional Interest), if any, to, but not including, the applicable Redemption Date (subject to
the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) if redeemed during the 12-month period commencing on April 1 of the years set forth below:
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| Period |
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Redemption Price |
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| 2018 |
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106.000 |
% |
| 2019 |
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104.000 |
% |
| 2020 |
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102.000 |
% |
| 2021 and thereafter |
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100.000 |
% |
In addition, prior to April 1, 2018, the Company may at its option on one or more occasions redeem the
Securities (which includes Additional Securities, if any) in an aggregate principal amount not to exceed 35% of the aggregate principal amount of the Securities (which includes Additional Securities, if any) originally issued at a redemption price
(expressed as a percentage of principal amount) of 108.000%, plus accrued and unpaid interest to, but not including, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant
interest payment date), with an amount of cash equal to the Net Cash Proceeds from one or more Stock Offerings; provided that:
(1) at least 65% of the aggregate principal amount of the Securities issued on the Issue Date remains outstanding immediately
after each such redemption (excluding Securities held by the Company or its Affiliates); and
(2) each such redemption
occurs within 180 days of the date of consummation of the related Stock Offering.
In addition, at any time and from time to time prior to
April 1, 2018, upon prior notice as provided in the Indenture, the Company may redeem the Securities, in whole or in part, at a redemption price equal to 100% of the principal amount thereof plus the Applicable Premium, plus accrued and unpaid
interest, if any, to, but not including, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).
Notice of any redemption shall be given pursuant to Section 5.5 of the Indenture not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, except that redemption notices may be given more than 60 days prior to a Redemption Date if the notice is issued in connection with a legal defeasance or covenant defeasance of the
Securities or a satisfaction and discharge of the Indenture pursuant to Article VIII. Any redemption or notice of redemption may, at the Company’s discretion, be subject to one or more
B-5
conditions precedent. Once notice of redemption without any condition precedent has been given, the Securities or portions of the Securities so to be redeemed without a condition precedent shall,
on the Redemption Date, become due and payable at the redemption price therein specified (together with accrued interest, if any, to the Redemption Date).
If the Redemption Date is on or after an interest record date and on or before the related interest payment date, the accrued and unpaid
interest (including Additional Interest), if any, will be paid on such Redemption Date to the Person in whose name the Security is registered at the close of business on such record date, and no Additional Interest will be payable to Holders whose
Securities will be subject to redemption by the Company.
In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee in accordance with Section 5.4 of the Indenture. If any Security is to be redeemed in part only, the notice of redemption relating to such Security shall state the portion of the principal amount thereof
to be redeemed. A new Security in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Security. On and after the Redemption Date, interest will cease to accrue
on Securities or portions thereof called for redemption as long as the Company has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to the Indenture.
The Company is not required to make any mandatory redemption or sinking fund payments with respect to the Securities.
The Company and its Subsidiaries may acquire Securities by means other than a redemption or required repurchase, whether by tender offer, open
market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of the Indenture.
(a) If a Change of Control occurs, unless the Company has
exercised its right to redeem all of the Securities as described under paragraph 5 above or another of the exceptions set forth in Section 3.9 of the Indenture applies, each Holder will have the right to require the Company to repurchase from
each Holder all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Securities at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) as provided in, and subject to the terms of, the Indenture.
(b) If the Company or any Restricted Subsidiary consummates an Asset Disposition, the Company may be obligated to make an Asset Disposition
Offer to all Holders and all holders of certain other Pari Passu Indebtedness, on the terms and subject to the conditions in Section 3.5.
B-6
| 7. |
Denominations; Transfer; Exchange |
The Securities are in registered form without coupons
in denominations of principal amount of $2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay a sum sufficient to cover any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange of any Security (A) for a period
(1) of 15 days giving of any notice of redemption of Securities or (2) beginning 15 days before an interest payment date and ending on such interest payment date or (B) selected for redemption, except the unredeemed portion of any
Security being redeemed in part.
The registered Holder of this Security shall be treated as the
owner of it for all purposes.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company for payment
as unsecured general creditors unless an abandoned property law designates another Person and not to the Trustee for payment.
Subject to certain exceptions and conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the Securities and the Indenture if the Company deposits with the Trustee money or Government Securities for the payment of principal and interest on the Securities to redemption
or final maturity, as the case may be.
| 11. |
Amendment, Supplement, Waiver |
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture, the Securities or the Subsidiary Guarantees may be amended or supplemented by the Company, the Subsidiary Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of the then
outstanding Securities and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended without the consent of each Securityholder affected) or noncompliance with any provision may be waived with
the consent of the Holders of a majority in principal amount of the then outstanding Securities. Subject to certain exceptions set forth in the Indenture, without the consent of any Securityholder, the Company, the Subsidiary Guarantors and the
Trustee may amend or supplement the Indenture, the Securities or the Subsidiary Guarantees to cure any ambiguity, omission, defect or inconsistency, to comply with Article IV of the Indenture, to provide for uncertificated Securities in addition to,
or in place of, certificated Securities, to add Guarantees with respect to the Securities, or release a Subsidiary Guarantor from its Subsidiary Guarantee, provided that the release is in accordance with the Indenture, to secure the
Securities or the Subsidiary Guarantees, to add additional covenants of the Company for the benefit of the Holders or to surrender any right or power
B-7
conferred on the Company or a Subsidiary Guarantor, to make any change that does not adversely affect the rights of any Securityholder, to comply with any requirement of the SEC in connection
with qualifying the Indenture under the Trust Indenture Act, to provide for the issuance of Additional Securities in accordance with the limitations set forth in the Indenture, to evidence or provide for the appointment of a successor Trustee or to
conform the text of the Indenture, the Securities or the Subsidiary Guarantees to any provision of this “Description of notes” contained in the Indenture.
| 12. |
Defaults and Remedies |
Section 6.1 of the Indenture sets forth several Events of
Default, including: (i) default in any payment of interest (including any Additional Interest required by the applicable Registration Rights Agreement), on any Security when due, continued for 30 days; (ii) default in the payment of
principal on any Security when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise; and (iii) certain events of bankruptcy, insolvency or reorganization of the Company or
a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary.
If an Event of Default (other than an Event of Default described in (iii) of the preceding paragraph) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in principal amount of the outstanding Securities by notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare all the Securities to be
due and payable immediately. If an Event of Default described in clause (iii) of the preceding paragraph occurs and is continuing, the principal of and accrued and unpaid interest (including Additional Interest) on all the Securities will
become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
Securityholders
may not enforce the Indenture or the Securities except as provided in the Indenture. Subject to the provisions of the Indenture relating to the duties of the Trustee if an Event of Default exists, the Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of the Securities may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal, premium, if any, or interest) if it determines that withholding notice is in their interests.
| 13. |
Trustee Dealings with the Company |
Subject to certain limitations set forth in the
Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were not Trustee.
B-8
| 14. |
No personal liability of directors, officers, employees and stockholders |
No director,
officer, employee, manager, incorporator, member, partner or stockholder or other owner of Capital Stock of the Company or any of its Subsidiaries, as such, will have any liability for any obligations of the Company or the Subsidiary Guarantors
under the Securities, the Indenture or the Subsidiary Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of a Security by accepting the Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Securities.
This Security shall not be valid until an authorized signatory of the
Trustee (or an Authenticating Agent acting on its behalf) manually signs the certificate of authentication on the other side of this Security.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
| 17. |
CUSIP, Common Code and ISIN Numbers |
The Company has caused CUSIP and ISIN numbers to be
printed on the Securities, and the Trustee may use CUSIP, Common Code and ISIN numbers, if applicable, in notices of redemption or purchase as a convenience to Securityholders. No representation is made as to the accuracy of such numbers either as
printed on the Securities or as contained in any notice of redemption or purchase and reliance may be placed only on the other identification numbers placed thereon.
This Security shall be governed by, and construed in accordance with, the
laws of the State of New York.
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture, which has in it the text of this Security. Requests may be made to:
CONSOL Energy Inc.
CNX Center
1000 CONSOL Energy Drive
Canonsburg, PA 15317-6506
Attention: General Counsel
B-9
The parties hereto acknowledge that in accordance with Section 326 of
the Patriot Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to the Indenture agree that they will
provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the Patriot Act.
B-10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s Social Security or Tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Company. The agent may substitute another to act for him.
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| Signature Guarantee |
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| (Signature must be guaranteed) |
Sign exactly as your name appears on
the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to SEC Rule 17Ad-15.
B-11
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
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| Date of increase/decrease |
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Amount of
decrease in
Principal Amount
of this Global
Security |
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Amount of
increase in
Principal Amount
of this Global
Security |
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Principal Amount
of this Global
Security following
such decrease or
increase |
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Signature of
authorized
signatory of
Trustee or
Securities
Custodian |
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B-12
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Security purchased by the Company pursuant to Section 3.5 or 3.9 of the Indenture, check either box:
¨ 3.5
¨ 3.9
If you want to elect to have
only part of this Security purchased by the Company pursuant to Section 3.5 or Section 3.9 of the Indenture, state the amount in principal amount (must be in denominations of $2,000 or an integral multiple of $1,000 in excess thereof):
$ and specify the denomination or denominations (which shall not be less than the minimum authorized denomination) of the Securities to be issued to the Holder for the portion of the within Security
not being repurchased (in the absence of any such specification, one such Security will be issued for the portion not being repurchased): $ .
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Your Signature: |
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(Sign exactly as your name appears on the other side of the Security) |
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| Signature Guarantee |
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| (Signature must be guaranteed) |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature guarantee medallion program), pursuant to SEC Rule 17Ad-15.
B-13
EXHIBIT C
FORM OF INDENTURE SUPPLEMENT TO ADD SUBSIDIARY GUARANTORS
This Supplemental Indenture, dated as of [ ],
20 (this “Supplemental Indenture” or “Subsidiary Guarantee”), is among [name of future Subsidiary Guarantor] (the “Subsidiary Guarantor”), CONSOL Energy Inc. (together with
its successors and assigns, the “Company”), each other then existing Subsidiary Guarantor under the Indenture referred to below, and Wells Fargo Bank, National Association, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS,
the Company, the Subsidiary Guarantors and the Trustee have heretofore executed and delivered an Indenture, dated as of March 30, 2015 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the
issuance of an aggregate principal amount of $500,000,000 of 8.000% Senior Notes due 2023 of the Company (the “Securities”);
WHEREAS, Section 3.11 of the Indenture provides that after the Issue Date the Company is required to cause certain of its Domestic
Subsidiaries to execute and deliver to the Trustee a supplemental indenture pursuant to which such Domestic Subsidiary will unconditionally Guarantee, on a joint and several basis with the other Subsidiary Guarantors, the full and prompt payment of
the principal of, premium, if any, and interest on the Securities; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the
Trustee, the Subsidiary Guarantors and the Company are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged,
the Subsidiary Guarantor, the Company, the other Subsidiary Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto
are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
ARTICLE II
Agreement to be Bound; Subsidiary Guarantee
SECTION 2.1 Agreement to be Bound. The Subsidiary Guarantor hereby becomes a party to the Indenture as a Subsidiary Guarantor and as
such will have all of the rights and be
C-1
subject to all of the obligations and agreements of a Subsidiary Guarantor under the Indenture. The Subsidiary Guarantor agrees to be bound by all of the provisions of the Indenture applicable to
a Subsidiary Guarantor and to perform all of the obligations and agreements of a Subsidiary Guarantor under the Indenture.
SECTION 2.2
Subsidiary Guarantee. The Subsidiary Guarantor agrees, on a joint and several basis with all the existing Subsidiary Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Securities and the Trustee the
Obligations pursuant to Article X of the Indenture.
ARTICLE III
Miscellaneous
SECTION 3.1
Notices. All notices and other communications to the Subsidiary Guarantor shall be given as provided in Section 12.2 of the Indenture.
SECTION 3.2 Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, other than the Holders
and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.3 Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 3.4 Severability Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
SECTION 3.5 Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of
Securities heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein,
all of which recitals are made solely by the other parties hereto.
SECTION 3.6 Counterparts. The parties hereto may sign one or
more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
SECTION
3.7 Headings. The headings of the Articles and the sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
SECTION 3.8 Trustee’s Disclaimer. The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture, but
on the terms and conditions set forth in
C-2
the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee. Without limiting the generality of the foregoing, the Trustee shall
not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, for or with respect to (i) the proper authorization hereof by the Company or the Subsidiary Grantors by action or otherwise,
(ii) the due execution hereof by the Company or the Subsidiary Guarantors, or (iii) the consequences of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
C-3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
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| [SUBSIDIARY GUARANTOR], |
| as a Subsidiary Guarantor |
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| By: |
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| Name: |
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| Title: |
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| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
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| By: |
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| Name: |
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| Title: |
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| CONSOL ENERGY INC. |
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| By: |
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| Name: |
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| Title: |
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| [OTHER EXISTING SUBSIDIARY GUARANTORS] |
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| By: |
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| Name: |
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| Title: |
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C-4
Exhibit 4.2
Execution Version
$500,000,000
CONSOL
ENERGY INC.
8.000% Senior Notes due 2023
Registration Rights Agreement
This REGISTRATION RIGHTS AGREEMENT dated March 30, 2015 (the “Agreement”) is entered into by and among CONSOL Energy Inc., a
Delaware corporation (the “Company”), the guarantors signatory hereto (collectively, the “Guarantors”), and Goldman, Sachs & Co., as representative of the several initial purchasers (collectively, the “Initial
Purchasers” named on Schedule A to the Purchase Agreement).
The Company, the Guarantors and the Initial Purchasers are parties to
the Purchase Agreement dated March 25, 2015 (the “Purchase Agreement”), which provides for the sale by the Company to the Initial Purchasers of $500,000,000 aggregate principal amount of the Company’s 8.000% Senior Notes due 2023
(the “Securities”) which will be guaranteed on an unsecured senior basis by each of the Guarantors. As an inducement to the Initial Purchasers to enter into the Purchase Agreement, the Company and the Guarantors have agreed to provide to
the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the following meanings:
“Additional Guarantor” shall mean any subsidiary of the Company that executes a Subsidiary Guarantee under the Indenture after the
date of this Agreement.
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks
in New York City are authorized or required by law to remain closed.
“Company” shall have the meaning set forth in the preamble
and shall also include the Company’s successors.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended
from time to time.
“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall mean the exchange offer by the Company and the Guarantors of Exchange Securities for Registrable Securities
pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration
statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any
document incorporated by reference therein.
“Exchange Securities” shall mean senior notes issued by the Company and guaranteed
by the Guarantors under the Indenture containing terms identical to the Securities (except that the Exchange Securities will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with this
Agreement) and to be offered to Holders of Securities in exchange for Securities pursuant to the Exchange Offer.
“FINRA” means
the Financial Industry Regulatory Authority, Inc.
“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405
under the Securities Act) prepared by or on behalf of the Company or used or referred to by the Company in connection with the sale of the Securities or the Exchange Securities.
“Guarantors” shall have the meaning set forth in the preamble and shall also include any Guarantor’s successors that guarantee
the Securities and any Additional Guarantors.
“Holders” shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become owners of Registrable Securities under the Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the term
“Holders” shall include Participating Broker-Dealers.
“Indemnified Person” shall have the meaning set forth in
Section 5(c) hereof.
“Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.
“Indenture” shall mean the Indenture dated as of March 30, 2015 among the Company, the Guarantors and Wells Fargo Bank,
National Association, as trustee, as the same may be amended from time to time in accordance with the terms thereof.
“Initial
Purchasers” shall have the meaning set forth in the preamble.
“Inspector” shall have the meaning set forth in
Section 3(a)(xiv) hereof.
“Issuer Information” shall have the meaning set forth in Section 5(a) hereof.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of the outstanding Registrable Securities;
provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable Securities owned directly or indirectly by the Company or any of its affiliates shall not be counted
in determining whether such consent or approval was given by the Holders of such required percentage or amount; and provided, further, that if the Company shall issue any additional Securities under the Indenture prior to consummation of the
Exchange Offer or, if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and the Registrable Securities to which this Agreement relates shall be treated together as one class for purposes of determining
whether the consent or approval of Holders of a specified percentage of Registrable Securities has been obtained.
“Notice and
Questionnaire” shall mean a notice of registration statement and selling security holder questionnaire distributed to a Holder by the Company upon receipt of a Shelf Request from such Holder.
“Participating Broker-Dealers” shall have the meaning set forth in Section 4(a) hereof.
“Participating Holder” shall mean any Holder of Registrable Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 2(b) hereof.
“Person” shall mean an individual, partnership,
limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.
“Prospectus” shall mean the prospectus included in, or, pursuant to the rules and regulations of the Securities Act, deemed a part
of, a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document incorporated by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities; provided that the Securities shall cease to be Registrable Securities
(i) when a Registration Statement with respect to such Securities has become effective under the Securities Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement or (ii) when such Securities
cease to be outstanding.
2
“Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including without limitation: (i) all SEC, stock exchange or FINRA registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of counsel for any Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto, any underwriting agreements, securities
sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Company and the Guarantors and, in the case of a Shelf Registration Statement,
the fees and disbursements of one counsel for the Participating Holders (which counsel shall be selected by the Participating Holders holding a majority of the aggregate principal amount of Registrable Securities held by such Participating Holders
and which counsel may also be counsel for the Initial Purchasers) and (viii) the fees and disbursements of the independent public accountants and independent petroleum engineers of the Company and the Guarantors, including the expenses of any
special audits, “comfort” letters or letters concerning oil and gas reserve estimates, as applicable, required by or incident to the performance of and compliance with this Agreement, but excluding fees and expenses of counsel to the
Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
“Registration Statement” shall mean any registration statement filed under the Securities Act of the
Company and the Guarantors that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities” shall have the meaning set forth in the preamble.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.
“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company and the Guarantors that covers
all or a portion of the Registrable Securities (but no other securities unless approved by a majority in aggregate principal amount of the Registrable Securities held by the Participating Holders) on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part
thereof, all exhibits thereto and any document incorporated by reference therein.
“Shelf Request” shall have the meaning set
forth in Section 2(b) hereof.
“Subsidiary Guarantees” shall mean the guarantees of the Securities and Exchange Securities
by the Guarantors under the Indenture.
“Staff” shall mean the staff of the SEC.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to time.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
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“Underwriter” shall have the meaning set forth in Section 3(e) hereof.
“Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an Underwriter for reoffering to the
public.
2. Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable
interpretations of the Staff, the Company and the Guarantors shall use commercially reasonable efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities
for Exchange Securities and (ii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer
promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use commercially reasonable efforts to complete the Exchange Offer not later than 60 days after such effective date.
The Company and the Guarantors shall commence the Exchange Offer by mailing or making available the related Prospectus, appropriate letters of
transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
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(i) |
that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange; |
| |
(ii) |
the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed or made available) (the “Exchange Dates”); |
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(iii) |
that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein; |
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(iv) |
that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to
the institution and at the address and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of
business on the last Exchange Date; and |
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(v) |
that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address specified in the notice, a telegram,
facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged or
(B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. |
As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that
(i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in
the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of
the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading
activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
| |
(i) |
accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and |
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(ii) |
deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. |
4
The Company and the Guarantors shall use commercially reasonable efforts to complete the Exchange
Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) In the
event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date
because it would violate any applicable law or applicable interpretations of the Staff, (ii) the Exchange Offer is not for any other reason completed by May 3, 2016 or (iii) any Initial Purchaser shall so request in connection with
any offer or sale of Registrable Securities (a “Shelf Request”), the Company and the Guarantors shall use commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the
case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any
Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and
provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof.
In the event that
the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use commercially reasonable efforts to file and have declared effective
by the SEC (or file and become effective automatically, as the case may be) both an Exchange Offer Registration Statement pursuant to Section 2(a) above with respect to all Registrable Securities and a Shelf Registration Statement (which may be
a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer.
The Company and the Guarantors agree to use commercially reasonable efforts to keep the Shelf Registration Statement continuously effective
until the earlier of one year following the effective date of the Shelf Registration Statement and such time as all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement
(the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder with respect to
information relating to such Holder, and, to the extent necessary, to use commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement, Prospectus or Free Writing Prospectus, as the case may
be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or
Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have
become effective unless it has been declared effective by the SEC. A Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC or is automatically
effective upon filing with the SEC as provided by Rule 462 under the Securities Act.
In the event that either the Exchange Offer is not
completed or the Shelf Registration Statement, if required hereby, is not declared effective (or does not automatically become effective) on or prior to May 3, 2016, the Company will pay liquidated damages to Holders of Registrable Securities
with the effect that the interest rate on
5
the Registrable Securities will be increased by 1.00% per annum until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, is declared effective by the
SEC (or becomes automatically effective). All liquidated damages will be paid by the Company on the next scheduled interest payment date in the same manner as interest is paid on the Securities under the Indenture.
If the Shelf Registration Statement, if required hereby, has been declared effective or automatically becomes effective, as the case may be,
and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days (whether or not
consecutive) in any 12-month period, unless such failure to remain effective or usable relates or is directly attributable to an acquisition or disposition being undertaken by the Company then the Company will pay liquidated damages to the Holders
of Registrable Securities with the effect that the interest rate on the Registrable Securities will be increased by 1.00% per annum commencing on the 31st day in such 12-month period and ending on such date that the Shelf Registration Statement
has again been declared (or automatically becomes) effective or the Prospectus again becomes usable.
(e) Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with their obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof. The provisions for liquidated damages set forth
in Section 2(d) above shall be the only monetary remedy available to the Holders under this Agreement.
3. Registration
Procedures. (a) In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantors shall as expeditiously as possible:
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(i) |
prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which form (x) shall be selected by the Company and the Guarantors, (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the Participating Holders thereof and (z) shall comply as to form in all material respects with the requirements of the applicable form and include all financial
statements and oil and gas reserve information required by the SEC to be filed therewith; and use commercially reasonable efforts to cause such Registration Statement to become effective and remain effective for the applicable period in accordance
with Section 2 hereof; |
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(ii) |
prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period described
in Section 4(3) of and Rule 174 under the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities; |
| |
(iii) |
to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus that is required to be filed by the Company or the Guarantors with the SEC in accordance with the Securities Act and to
retain any Free Writing Prospectus not required to be filed; |
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(iv) |
in the case of a Shelf Registration, furnish to each Participating Holder, to counsel for the Initial Purchasers, to counsel for such Participating Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary prospectus or Free Writing Prospectus, and any amendment or supplement thereto, as such Participating Holder, counsel or Underwriter may
reasonably request in order to facilitate the sale or other disposition of the Registrable Securities thereunder; and, subject to Section 3(c) below, the Company and the Guarantors’ consent to the use of such Prospectus, preliminary
prospectus or such Free Writing Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the Participating Holders and any such Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus or any amendment or supplement thereto in accordance with applicable law; |
6
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(v) |
use commercially reasonable efforts to register or qualify the Registrable Securities under all applicable state securities or blue sky laws of such jurisdictions as any Participating Holder shall reasonably request in
writing by the time the applicable Registration Statement becomes effective; cooperate with such Participating Holders in connection with any filings required to be made with FINRA, and do any and all other acts and things that may be reasonably
necessary or advisable to enable each Participating Holder to complete the disposition in each such jurisdiction of the Registrable Securities owned by such Participating Holder; provided that neither the Company nor any Guarantor shall be required
to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (2) file any general consent to service of process in any such
jurisdiction or (3) subject itself to taxation in any such jurisdiction if it is not so subject; |
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(vi) |
notify counsel for the Initial Purchasers and, in the case of a Shelf Registration, notify each Participating Holder and counsel for such Participating Holders promptly and, if requested by any such Participating Holder
or counsel, confirm such advice in writing (1) when a Registration Statement has become effective, when any post-effective amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has been filed or any amendment
or supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus
or for additional information after the Registration Statement has become effective, (3) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, including the receipt by the Company of any notice of objection of the SEC to the use of a Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act,
(4) if, between the applicable effective date of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company or any Guarantor contained in any
underwriting agreement, securities sales agreement or other similar agreement, if any, relating to an offering of such Registrable Securities cease to be true and correct in all material respects or if the Company or any Guarantor receives any
notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (5) of the happening of any event during the period a Registration
Statement is effective that makes any statement made in such Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such Registration Statement or
Prospectus or any Free Writing Prospectus in order to make the statements therein, in the light of the circumstances in which they were made in the case of the Prospectus or any Free Writing Prospectus, not misleading and (6) of any
determination by the Company or any Guarantor that a post-effective amendment to a Registration Statement or any amendment or supplement to the Prospectus or any Free Writing Prospectus would be appropriate; |
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(vii) |
use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution of any objection of the SEC
pursuant to Rule 401(g)(2) under the Securities Act, including by filing an amendment to such Registration Statement on the proper form, at the earliest practicable moment and provide immediate notice to each Holder or Participating Holder of the
withdrawal of any such order or such resolution; |
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(viii) |
in the case of a Shelf Registration, furnish or make available to each Participating Holder, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without
any documents incorporated therein by reference or exhibits thereto, unless requested); |
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(ix) |
in the case of a Shelf Registration, cooperate with the Participating Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be issued in such denominations and registered in such names (consistent with the provisions of the Indenture) as such Participating Holders may reasonably request at least one Business
Day prior to the closing of any sale of Registrable Securities; |
7
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(x) |
upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, use commercially reasonable efforts to prepare and file with the SEC a supplement or post-effective amendment to the Exchange Offer
Registration Statement or Shelf Registration Statement or the related Prospectus or any Free Writing Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered (or, to the extent
permitted by law, made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company and the Guarantors shall notify the Participating Holders (in the case of a Shelf Registration Statement) and the Initial
Purchasers and any Participating Broker-Dealers known to the Company (in the case of the Exchange Offer Registration Statement) to suspend use of the Prospectus or any Free Writing Prospectus as promptly as practicable after the occurrence of such
an event, and such Participating Holders, such Participating Broker-Dealers and the Initial Purchasers, as applicable, hereby agree to suspend use of the Prospectus or any Free Writing Prospectus, as the case may be, until the Company and the
Guarantors have amended or supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such misstatement or omission; provided that the obligations under this Section 3(a)(x) with respect to the Exchange Offer
Registration Statement shall terminate at the end of the period set forth in Section 2(a)(ii) of this Agreement; |
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(xi) |
a reasonable time prior to the filing of any Registration Statement, any Prospectus, any Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or a Free Writing
Prospectus, provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, to the Participating Holders and their counsel) and make such of the representatives of the Company and the
Guarantors as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) available for discussion of such document; and the Company and
the Guarantors shall not, at any time after initial filing of a Registration Statement, use or file any Prospectus, any Free Writing Prospectus, any amendment of or supplement to a Registration Statement, a Prospectus or a Free Writing Prospectus,
of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders and their counsel) shall not have previously been advised and furnished a copy or to which the Initial Purchasers or
their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) shall reasonably object; |
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(xii) |
obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the initial effective date of a Registration Statement; |
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(xiii) |
cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate with the Trustee and the Holders
to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use commercially reasonable efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner; |
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(xiv) |
in the case of a Shelf Registration, make available for inspection by a representative of the Participating Holders (an “Inspector”), any Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, any attorneys and accountants designated by a majority in aggregate principal amount of the Registrable Securities held by the Participating Holders and any attorneys and accountants designated by such Underwriter, at
reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of the Company and its subsidiaries, and cause the respective officers, directors and employees of the Company and the Guarantors to
supply all information reasonably requested by any such Inspector, Underwriter, attorney or accountant in connection with a Shelf Registration Statement; provided that if any such information is identified by the Company or any Guarantor as being
confidential or proprietary, each Person receiving such information shall take such actions as are reasonably necessary to protect the confidentiality of such information to the extent such action is otherwise not inconsistent with, an impairment of
or in derogation of the rights and interests of any Inspector, Participating Holder or Underwriter; |
8
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(xv) |
if reasonably requested by any Participating Holder, promptly include in a Prospectus supplement or post-effective amendment such information with respect to such Participating Holder as such Participating Holder
reasonably requests to be included therein and make all required filings of such Prospectus supplement or such post-effective amendment as soon as the Company has received notification of the matters to be so included in such filing;
|
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(xvi) |
in the case of a Shelf Registration, enter into such customary agreements and take all such other commercially reasonable actions in connection therewith (including those requested by the Participating Holders of a
majority in principal amount of the Registrable Securities covered by the Shelf Registration Statement) in order to expedite or facilitate the disposition of such Registrable Securities including, but not limited to, an Underwritten Offering and in
such connection, (1) to the extent possible, make such representations and warranties to the Participating Holders and any Underwriters of such Registrable Securities with respect to the business of the Company and its subsidiaries and the
Registration Statement, Prospectus, any Free Writing Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (2) obtain opinions of counsel to the Company and the Guarantors (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Participating
Holders and such Underwriters and their respective counsel) addressed to each Participating Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (3) obtain
“comfort” letters from the independent certified public accountants of the Company and the Guarantors (and, if necessary, any other certified public accountant of any subsidiary of the Company or the Guarantors, or of any business acquired
by the Company or the Guarantors for which financial statements and financial data are or are required to be included in the Registration Statement) addressed to each Participating Holder (to the extent permitted by applicable professional
standards) and Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, including but not limited to
financial information contained in any preliminary prospectus, Prospectus or Free Writing Prospectus, (4) obtain oil and gas reserve report letters from any independent petroleum engineering firms whose reports relating to the Company’s
reserves have, prior to the date of such Shelf Registration, been previously publicly disclosed in a filing by the Company and (5) deliver such documents and certificates as may be reasonably requested by the Participating Holders of a majority
in principal amount of the Registrable Securities being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Company and the
Guarantors made pursuant to clause (1) above and to evidence compliance with any customary conditions contained in an underwriting agreement; and |
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(xvii) |
So long as any Registrable Securities remain outstanding, cause each Additional Guarantor upon the creation or acquisition by the Company of such Additional Guarantor, to execute a counterpart to this Agreement in the
form attached hereto as Annex A and to deliver such counterpart, together with an opinion of counsel as to the enforceability thereof against such entity, to the Initial Purchasers no later than five Business Days following the execution thereof.
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(b) In the case of a Shelf Registration Statement, the Company may require each Holder of Registrable Securities to furnish
to the Company a Notice and Questionnaire and such other information regarding such Holder and the proposed disposition by such Holder of such Registrable Securities as the Company and the Guarantors may from time to time reasonably request in
writing.
(c) Each Participating Holder agrees that, upon receipt of any notice from the Company and the Guarantors of the happening of
any event of the kind described in Section 3(a)(vi)(3) or Section 3(a)(vi)(5) hereof, such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Shelf Registration Statement until such
Participating Holder’s receipt of the copies of the supplemented or amended Prospectus and any Free Writing Prospectus contemplated by Section 3(a)(x) hereof and, if so directed by the Company and the Guarantors, such Participating Holder
will deliver to the Company and the Guarantors all copies
9
in its possession, other than permanent file copies then in such Participating Holder’s possession, of the Prospectus and any Free Writing Prospectus covering such Registrable Securities
that is current at the time of receipt of such notice.
(d) If the Company and the Guarantors shall give any notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement, the Company and the Guarantors shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of
days during the period from and including the date of the giving of such notice to and including the date when the Holders of such Registrable Securities shall have received copies of the supplemented or amended Prospectus or any Free Writing
Prospectus necessary to resume such dispositions. The Company and the Guarantors may give any such notice only twice during any 365-day period and any such suspensions shall not exceed 30 days for each suspension and there shall not be more than two
suspensions in effect during any 365-day period.
(e) The Participating Holders who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment bank or investment banks and manager or managers (each an “Underwriter”) that will administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Securities included in such offering; provided, however, that such Underwriter must be reasonably satisfactory to the Company.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff has taken the position that any broker-dealer that receives
Exchange Securities for its own account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of market-making or other trading activities (a “Participating Broker-Dealer”) may be deemed to
be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff’s position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying
the amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their prospectus delivery obligation under the Securities
Act in connection with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of this Agreement, the Company and the Guarantors agree to amend or
supplement the Prospectus contained in the Exchange Offer Registration Statement for a period of up to 180 days after the last Exchange Date (as such period may be extended pursuant to Section 3(d) of this Agreement), in order to expedite or
facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above. The Company and the Guarantors further agree that Participating Broker-Dealers shall
be authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during such period in connection with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company, any Guarantor or any Holder with respect to any request that they may make
pursuant to Section 4(b) above.
5. Indemnification and Contribution. (a) The Company and the Guarantors, jointly and
severally, agree to indemnify and hold harmless each Holder, their respective affiliates, directors and officers and each Person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and
expenses are incurred), joint or several, that arise out of, or are based upon, (1) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any Free Writing
Prospectus or any “issuer information” (“Issuer Information”) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to state therein a material fact
10
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Holder furnished to the Company in writing by such
Holder expressly for use therein. In connection with any Underwritten Offering permitted by Section 3, the Company and the Guarantors, jointly and severally, will also indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their respective affiliates and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders, if requested in connection with any Registration Statement, any Prospectus, any Free Writing Prospectus or any Issuer Information.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantors and the other selling Holders,
the directors of the Company and the Guarantors, each officer of the Company and the Guarantors who signed the Registration Statement and each Person, if any, who controls the Company, the Guarantors and any other selling Holder within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Holder furnished to the Company in writing by such Holder expressly for use in any
Registration Statement, any Prospectus and any Free Writing Prospectus.
(c) If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted against any Person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified Person”)
shall promptly notify the Person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition
to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm (x) for any
Holder, its directors and officers and any control Persons of such Holder shall be designated in writing by the Majority Holders and (y) in all other cases shall be designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and
against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by
the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened
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proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(A) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not
include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) If
the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Guarantors from the offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the
Securities Act, on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also
the relative fault of the Company and the Guarantors on the one hand and the Holders on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors on the one hand and the Holders on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors or by the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company, the Guarantors and the Holders agree that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall a Holder be required to contribute any amount in excess of the
amount by which the total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The
Holders’ obligations to contribute pursuant to this Section 5 are several and not joint.
(f) The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or any Person controlling any Holder, or by or on behalf of the Company or the Guarantors or the officers or directors of or any Person
controlling the Company or the Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.
6. General.
(a) No
Inconsistent Agreements. The Company and the Guarantors represent, warrant and agree that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of any
other outstanding securities issued or guaranteed by the Company or any Guarantor under any other agreement and (ii) neither the Company nor any Guarantor has entered into, or on or after the date of this Agreement will enter into, any
agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company and the Guarantors have obtained the written consent of Holders of at least a
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majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 5 hereof or any provision that could affect adversely the rights of any Holder of Registrable Securities to receive liquidated damages in the amount and on the
payment dates as provided in Section 2(d) shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder. Any amendments, modifications, supplements, waivers or consents pursuant to this
Section 6(b) shall be by a writing executed by each of the parties hereto.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions of this Section 6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in the Purchase Agreement; (ii) if to the Company
and the Guarantors, initially at the Company’s address set forth in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c); and (iii) to such other
persons at their respective addresses as provided in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c). All such notices and communications shall be
deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied; and on the next Business Day if
timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held
subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person
shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability or obligation to the Company or the Guarantors with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this Agreement.
(e) Third Party Beneficiaries. Each Holder
shall be a third party beneficiary to the agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder.
(f) Counterparts.
This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only, are not a part of this Agreement
and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement, and any claim, controversy or
dispute arising under or related to this Agreement, shall be governed by and construed in accordance with the laws of the State of New York.
(i) Entire Agreement; Severability. This Agreement contains the entire agreement between the parties relating to the subject matter
hereof and supersedes all oral statements and prior writings with respect thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or
against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Company, the Guarantors and the Initial
Purchasers shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provisions.
[Signature Page to Follow.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
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| CONSOL ENERGY INC. |
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| By: |
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/s/ Stephen W. Johnson |
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Name: |
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Stephen W. Johnson |
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Title: |
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Executive Vice President – Chief Legal and Corporate Affairs Officer |
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| The Guarantors identified on Schedule I hereto, as Guarantors |
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| By: |
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/s/ Stephen W. Johnson |
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Name: |
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Stephen W. Johnson |
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Title: |
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Authorized Signatory for each of the Guarantors identified on Schedule I hereto |
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Confirmed and accepted as of the date first above written:
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| GOLDMAN, SACHS & CO.
Acting on behalf of itself and as the Representative of the several Initial Purchasers |
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| By: |
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/s/ Michael Hickey |
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Name: |
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Michael Hickey |
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Title: |
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Managing Director |
[Signature Page to
Registration Rights Agreement]
Annex A
Counterpart to Registration Rights Agreement
The undersigned hereby absolutely, unconditionally and irrevocably agrees as a Guarantor (as defined in the Registration Rights Agreement,
dated March 30, 2015 by and among CONSOL Energy Inc., a Delaware corporation, the guarantors party thereto and Goldman, Sachs & Co., on behalf of itself and the other Initial Purchasers) to be bound by the terms and provisions of such
Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned has executed this counterpart as of
, 201 .
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| [GUARANTOR] |
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Name: |
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Title: |
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Annex A
Schedule I — Guarantors
AMVEST Coal & Rail, LLC
AMVEST Coal Sales, Inc.
AMVEST Corporation
AMVEST Gas Resources, Inc.
AMVEST Mineral Services, Inc.
AMVEST Minerals Company, LLC
AMVEST Oil & Gas, Inc.
AMVEST West Virginia Coal,
L.L.C.
Braxton-Clay Land & Mineral, Inc.
Cardinal
States Gathering Company
CNX Gas Company LLC
CNX Gas
Corporation
CNX Land LLC
CNX Marine Terminals Inc.
CNX RCPC LLC
Coalfield Pipeline Company
Conrhein Coal Company
CONSOL Amonate Facility LLC
CONSOL Amonate Mining Company LLC
CONSOL Buchanan Mining Company
LLC
CONSOL Energy Holdings LLC VI
CONSOL Energy Sales
Company
CONSOL Financial Inc.
CONSOL Mining Company LLC
CONSOL Mining Holding Company LLC
CONSOL of Canada Inc.
CONSOL of Central Pennsylvania LLC
CONSOL of Kentucky Inc.
CONSOL of Ohio LLC
CNX Water Assets LLC (F/K/A CONSOL of WV
LLC)
Consol Pennsylvania Coal Company LLC
Fola Coal
Company, L.L.C.
Glamorgan Coal Company, LLC
Helvetia Coal
Company
Island Creek Coal Company
Knox Energy, LLC
Laurel Run Mining Company
Leatherwood, Inc.
Little Eagle Coal Company, L.L.C.
MOB Corporation
MTB, Inc.
Nicholas-Clay Land & Mineral, Inc.
Panda Bamboo Holdings, Inc.
Paros Corp.
Peters Creek Mineral Services, Inc.
R&PCC LLC
TEAGLE Company, LLC
TECPART Corporation
Terra Firma Company
Terry Eagle Coal Company, L.L.C.
Terry Eagle Limited Partnership
Vaughan Railroad Company
Windsor Coal Company
Wolfpen Knob Development Company
Schedule I - 1
Exhibit 99.1
CONSOL Energy Inc. Announces Closing of $500 Million of Senior Notes Offering
PITTSBURGH, March 30, 2015 — CONSOL Energy Inc. (NYSE: CNX) (“CONSOL”) today announced the closing of its private placement of $500
million of its 8.000% senior notes due 2023 (the “Notes”). The Notes are guaranteed by substantially all of CONSOL’s wholly owned domestic restricted subsidiaries.
CONSOL intends to use the net proceeds of the sale of the Notes, together with borrowings under its revolving credit facility to the extent necessary, to
purchase all of its outstanding 8.25% senior notes due 2020 (the “2020 Notes”) and its outstanding 6.375% senior notes due 2021 (the “2021 Notes”) that have and will be tendered pursuant to the tender offers and consent
solicitations that commenced on March 9, 2015.
David Khani, Chief Financial Officer of CONSOL said, “This financing transaction, together with
the contemplated draw on our credit facility, reduces our interest expense and will enable us to optimize the allocation of our indebtedness appropriately across CONSOL Energy and our thermal coal and metallurgical coal subsidiaries. In addition, in
order to maintain our liquidity, we have obtained a $600 million term loan commitment as a backstop for our credit facility. Taken together, these transactions are an important step towards accomplishing our previously announced strategic
objectives.”
The Notes have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state
securities laws and, unless so registered, may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and the rules promulgated
thereunder and applicable state securities laws. The Notes were offered only to qualified institutional buyers in reliance on Rule 144A under the Securities Act and non-U.S. persons in transactions outside the United States in reliance on Regulation
S under the Securities Act.
CONSOL is a Pittsburgh-based producer of natural gas and coal. CONSOL is one of the largest independent natural gas
exploration, development and production companies, with operations centered in the major shale formations of the Appalachian basin. Additional information may be found at www.consolenergy.com.
Cautionary Statements:
This press release does not
constitute an offer to sell or the solicitation of an offer to buy any notes nor shall there be any sale of notes in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of any such state.
Various statements in this release, including those that express a belief, expectation or intention, may be considered
forward-looking statements (as defined in Section 21E of the Exchange Act) that involve risks and uncertainties that could cause actual results to differ materially from projected results. Accordingly, investors should not place undue reliance
on forward-looking statements as a prediction of actual results. The forward-looking statements may include projections and estimates concerning the timing and success of specific projects and our future production, revenues, income and capital
spending. When we use the words “believe,” “intend,” “expect,” “may,” “should,” “anticipate,” “could,” “estimate,” “plan,” “predict,”
“project,” or their negatives, or other similar expressions, the statements which include those words are usually forward-looking statements. When we describe strategy that involves risks or uncertainties, we are making forward-looking
statements. The forward-looking statements in this press release, if any, speak only as of the date of this press release; we disclaim any obligation to update these statements. We have based these forward-looking statements on our current
expectations and assumptions about future events. While our management considers these expectations and assumptions to be reasonable, they are inherently subject to significant business, economic, competitive, regulatory and other risks,
contingencies and uncertainties, most of which are difficult to predict and many of which are beyond our control. These risks, contingencies and uncertainties relate to, among other matters, the factors discussed in the 2013 Form 10-K under
“Risk Factors,” as updated by any subsequent Form 10-Qs, which are on file at the Securities and Exchange Commission.
Contacts:
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| Investor: |
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Tyler Lewis at (724) 485-3157 |
| Media: |
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Brian Aiello at (724) 485-3078 |
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