Exhibit 4.1
Execution Copy
SENIOR INDENTURE
CARRIZO OIL & GAS, INC.
as Issuer
and
THE POTENTIAL SUBSIDIARY GUARANTORS
LISTED ON THE SIGNATURE PAGES HERETO
as Potential Subsidiary Guarantors
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
Indenture
Dated as of May 28, 2008
Debt Securities
CARRIZO OIL & GAS, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of May 28, 2008
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Section of
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Trust Indenture
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Section(s) of
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Act of 1939
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Indenture
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§ 310
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(a)(1)
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7.10
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(a)
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(2)
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7.10
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(a)
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(3)
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Not Applicable
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(a)
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(4)
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Not Applicable
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(a)
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(5)
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7.10
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(b)
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7.08, 7.10
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§ 311
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(a)
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7.11
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(b)
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7.11
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(c)
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Not Applicable
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§ 312
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(a)
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2.07
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(b)
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11.03
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(c)
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11.03
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§ 313
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(a)
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7.06
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(b)
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7.06
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(c)
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7.06
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(d)
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7.06
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§ 314
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(a)
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4.03, 4.04
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(b)
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Not Applicable
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(c)(1)
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11.04
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(c)(2)
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11.04
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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11.05
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§ 315
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(a)
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7.01(b)
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(b)
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7.05
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(c)
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7.01(a)
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(d)
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7.01(c)
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(d)(1)
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7.01(c)(1)
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(d)(2)
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7.01(c)(2)
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(d)(3)
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7.01(c)(3)
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(e)
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6.11
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§ 316
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(a)(1)(A)
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6.05
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(a)(1)(B)
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6.04
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(a)(2)
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Not Applicable
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(a)(last sentence)
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2.11
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(b)
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6.07
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§ 317
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(a)(1)
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6.08
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(a)(2)
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6.09
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(b)
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2.06
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§ 318
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(a)
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11.01
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Note:
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This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
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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 1.01 Definitions
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1
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SECTION 1.02 Other Definitions
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6
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SECTION 1.03 Incorporation by Reference of Trust Indenture Act
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6
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SECTION 1.04 Rules of Construction
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7
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ARTICLE II THE SECURITIES
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7
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SECTION 2.01 Amount Unlimited; Issuable in Series
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7
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SECTION 2.02 Denominations
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10
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SECTION 2.03 Forms Generally
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10
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SECTION 2.04 Execution, Authentication, Delivery and Dating
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11
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SECTION 2.05 Registrar and Paying Agent
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13
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SECTION 2.06 Paying Agent to Hold Money in Trust
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13
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SECTION 2.07 Holder Lists
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13
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SECTION 2.08 Transfer and Exchange
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14
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SECTION 2.09 Replacement Securities
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14
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SECTION 2.10 Outstanding Securities
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SECTION 2.11 Original Issue Discount, Foreign-Currency
Denominated and Treasury Securities
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15
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SECTION 2.12 Temporary Securities
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15
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SECTION 2.13 Cancellation
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SECTION 2.14 Payments; Defaulted Interest
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16
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SECTION 2.15 Persons Deemed Owners
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16
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SECTION 2.16 Computation of Interest
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17
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SECTION 2.17 Global Securities; Book-Entry Provisions
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17
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ARTICLE III REDEMPTION
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SECTION 3.01 Applicability of Article
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19
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SECTION 3.02 Notice to the Trustee
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19
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SECTION 3.03 Selection of Securities To Be Redeemed
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19
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SECTION 3.04 Notice of Redemption
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20
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SECTION 3.05 Effect of Notice of Redemption
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21
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SECTION 3.06 Deposit of Redemption Price
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21
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SECTION 3.07 Securities Redeemed or Purchased in Part
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21
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SECTION 3.08 Purchase of Securities
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21
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SECTION 3.09 Mandatory and Optional Sinking Funds
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SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities
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SECTION 3.11 Redemption of Securities for Sinking Fund
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ARTICLE IV COVENANTS
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SECTION 4.01 Payment of Securities
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i
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Page
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SECTION 4.02 Maintenance of Office or Agency
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SECTION 4.03 SEC Reports; Financial Statements
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SECTION 4.04 Compliance Certificate
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SECTION 4.05 Corporate Existence
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SECTION 4.06 Waiver of Stay, Extension or Usury Laws
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SECTION 4.07 Additional Amounts
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ARTICLE V SUCCESSORS
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SECTION 5.01 Limitations on Mergers and Consolidations
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SECTION 5.02 Successor Person Substituted
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ARTICLE VI DEFAULTS AND REMEDIES
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27
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SECTION 6.01 Events of Default
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27
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SECTION 6.02 Acceleration
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29
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SECTION 6.03 Other Remedies
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SECTION 6.04 Waiver of Defaults
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30
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SECTION 6.05 Control by Majority
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30
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SECTION 6.06 Limitations on Suits
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30
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SECTION 6.07 Rights of Holders to Receive Payment
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31
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SECTION 6.08 Collection Suit by Trustee
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31
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SECTION 6.09 Trustee May File Proofs of Claim
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31
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SECTION 6.10 Priorities
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SECTION 6.11 Undertaking for Costs
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ARTICLE VII TRUSTEE
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33
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SECTION 7.01 Duties of Trustee
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33
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SECTION 7.02 Rights of Trustee
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34
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SECTION 7.03 May Hold Securities
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34
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SECTION 7.04 Trustees Disclaimer
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35
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SECTION 7.05 Notice of Defaults
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35
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SECTION 7.06 Reports by Trustee to Holders
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35
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SECTION 7.07 Compensation and Indemnity
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35
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SECTION 7.08 Replacement of Trustee
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36
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SECTION 7.09 Successor Trustee by Merger, etc.
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38
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SECTION 7.10 Eligibility; Disqualification
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38
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SECTION 7.11 Preferential Collection of Claims Against the Company or the
Subsidiary Guarantor
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38
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ARTICLE VIII DISCHARGE OF INDENTURE
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39
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SECTION 8.01 Termination of the Companys and the Subsidiary
Guarantors Obligations
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39
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SECTION 8.02 Application of Trust Money
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42
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SECTION 8.03 Repayment to Company
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43
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SECTION 8.04 Reinstatement
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ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS
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43
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SECTION 9.01 Without Consent of Holders
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43
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ii
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Page
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SECTION 9.02 With Consent of Holders
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45
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SECTION 9.03 Compliance with Trust Indenture Act
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47
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SECTION 9.04 Revocation and Effect of Consents
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47
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SECTION 9.05 Notation on or Exchange of Securities
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47
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SECTION 9.06 Trustee to Sign Amendments, etc.
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48
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ARTICLE X GUARANTEE
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48
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SECTION 10.01 Guarantee
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48
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SECTION 10.02 Execution and Delivery of Guarantee
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50
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SECTION 10.03 Limitation on Liability of the Subsidiary Guarantor
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51
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SECTION 10.04 Release of Subsidiary Guarantor from Guarantee
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51
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ARTICLE XI MISCELLANEOUS
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52
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SECTION 11.01 Trust Indenture Act Controls
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52
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SECTION 11.02 Notices
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52
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SECTION 11.03 Communication by Holders with Other Holders
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53
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SECTION 11.04 Certificate and Opinion as to Conditions Precedent
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54
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SECTION 11.05 Statements Required in Certificate or Opinion
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54
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SECTION 11.06 Rules by Trustee and Agents
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54
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SECTION 11.07 Legal Holidays
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54
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SECTION 11.08 No Recourse Against Others
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55
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SECTION 11.09 Governing Law
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55
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SECTION 11.10 No Adverse Interpretation of Other Agreements
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55
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SECTION 11.11 Successors
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55
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SECTION 11.12 Severability
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55
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SECTION 11.13 Counterpart Originals
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55
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SECTION 11.14 Table of Contents, Headings, etc.
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55
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iii
INDENTURE dated as of May 28, 2008 between Carrizo Oil & Gas, Inc., a Texas corporation (the
Company), the potential subsidiary guarantors listed on the signature pages hereto (the
Potential Subsidiary Guarantors), and Wells Fargo Bank, National Association, as trustee (the
Trustee).
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Companys unsecured debentures, notes or other evidences of
indebtedness (the Securities), and the related Guarantees (as hereinafter defined), to be issued
from time to time in one or more series as provided in this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01
Definitions.
Additional Amounts means any additional amounts required by the express terms of a Security
or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant thereto,
to be paid by the Company with respect to certain taxes, assessments or other governmental charges
imposed on certain Holders and that are owing to such Holders.
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 of a Person shall mean the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms controlling and controlled shall have
meanings correlative to the foregoing.
Agent means any Registrar or Paying Agent.
Bankruptcy Law means Title 11 of the United States Code or any similar federal, state or
foreign law for the relief of debtors.
Board of Directors means the Board of Directors of the Company or any committee thereof duly
authorized, with respect to any particular matter, to act by or on behalf of the Board of Directors
of the Company.
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 the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
Business Day means any day that is not a Legal Holiday.
Company means the Person named as the Company in the first 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;
provided, however,
that for
purposes of any provision contained herein which is required by the TIA, Company shall also mean
each other obligor (if any) on the Securities of a series.
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Company Order and Company Request mean, respectively, a written order or request signed in
the name of the Company by two Officers of the Company, and delivered to the Trustee.
Corporate Trust Office of the Trustee means the office of the Trustee located at 1445 Ross
Avenue, 2nd Floor, MAC T5303-02J, Dallas, TX 75202, Attention: Patrick Giordano, and as may be
located at such other address as the Trustee may give notice to the Company.
Default means any event, act or condition that is, or after notice or the passage of time or
both would be, an Event of Default.
Depositary means, with respect to the Securities of any series issuable or issued in whole
or in part in global form, the Person specified pursuant to Section 2.01 hereof as the initial
Depositary with respect to the Securities of such series, until a successor shall have been
appointed and become such pursuant to the applicable provision of this Indenture, and thereafter
Depositary shall mean or include such successor.
Dollar or $ means a dollar or other equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment of public and private debt.
Exchange Act means the Securities Exchange Act of 1934, as amended, and any successor
statute.
GAAP means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be approved by a
significant segment of the accounting profession of the United States, as in effect from time to
time.
Global Security means a Security that is issued in global form in the name of the Depositary
with respect thereto or its nominee.
Government Obligations means, with respect to a series of Securities, direct obligations of
the government that issues the currency in which the Securities of the series are payable for the
payment of which the full faith and credit of such government is pledged, or obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of such government,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by such
government.
Guarantee means the guarantee of the Companys obligations under the Securities of a series
by a Subsidiary Guarantor (specified with respect to such series as contemplated by Section
2.01(9)) as provided in Article X.
Holder means a Person in whose name a Security is registered.
2
Indenture means this Indenture as amended or supplemented from time to time pursuant to the
provisions hereof, and includes the terms of a particular series of Securities established as
contemplated by Section 2.01.
interest means, with respect to an Original Issue Discount Security that by its terms bears
interest only after Maturity, interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, shall have the meaning
assigned to such term in the Security as contemplated by Section 2.01.
Issue Date means, with respect to Securities of a series, the date on which the Securities
of such series are originally issued under this Indenture.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in any of
The City of New York, New York; Houston, Texas or a Place of Payment are authorized or obligated by
law, regulation or executive order to remain closed.
Maturity means, with respect to any Security, the date on which the principal of such
Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity thereof, or by declaration of acceleration, call for redemption or
otherwise.
Officer means the Chairman of the Board, the President, any Vice Chairman of the Board, any
Vice President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, any Assistant Controller, the Secretary or any Assistant Secretary of a Person.
Officers Certificate means a certificate signed by two Officers of a Person.
Opinion of Counsel means a written opinion from legal counsel who is acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company or the Trustee.
Original Issue Discount Security means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.02.
Person means any individual, corporation, partnership, limited liability company, joint
venture, incorporated or unincorporated association, joint stock company, trust, unincorporated
organization or government or other agency, instrumentality or political subdivision thereof or
other entity of any kind.
Place of Payment means, with respect to the Securities of any series, the place or places
where the principal of, premium (if any) and interest on and any Additional Amounts with respect to
the Securities of that series are payable as specified in accordance with Section 2.01 subject to
the provisions of Section 4.02.
3
principal of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on the Security.
Redemption Date means, with respect to any Security to be redeemed, the date fixed for such
redemption by or pursuant to this Indenture.
Redemption Price means, with respect to any Security to be redeemed, the price at which it
is to be redeemed pursuant to this Indenture.
Responsible Officer means any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant 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 persons knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this
Indenture.
Rule 144A Securities means Securities of a series designated pursuant to Section 2.01 as
entitled to the benefits of Section 4.03(b).
SEC means the Securities and Exchange Commission.
Securities has the meaning stated in the preamble of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture.
Security Custodian means, with respect to Securities of a series issued in global form, the
Trustee for Securities of such series, as custodian with respect to the Securities of such series,
or any successor entity thereto.
Significant Subsidiary means a Subsidiary of the Company that is a significant subsidiary
of the Company as such term is defined in Rule 1-02(w) of Regulation S-X as of the date hereof.
Stated Maturity means, when used with respect to any Security or any installment of
principal thereof or interest thereon, the date specified in such Security as the fixed date on
which the principal of such Security or such installment of principal or interest is due and
payable.
Subsidiary means a Person at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition, voting stock
means stock having voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
Subsidiary Guarantors means, with respect to any series of Securities, the Person or
Persons, if any, named in accordance with Section 2.01(9) as the Subsidiary Guarantors (i) in or
pursuant to a Board Resolution, and set forth, or determined in the manner provided, in an
Officers Certificate of the Company or in a Company Order, or (ii) in an
4
indenture supplemental hereto establishing the terms of such series of Securities until a
successor Person or Persons shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Subsidiary Guarantor with respect to such series of Securities shall
mean such successor Person or Persons, in any case until the Guarantee is released pursuant to the
provisions of Article X. If a series of Securities does not have any Subsidiary Guarantors, all
references in this Indenture to the Subsidiary Guarantors shall be ignored with respect to such
series of Securities.
TIA means the Trust Indenture Act of 1939, as amended, as in effect on the date hereof.
Trustee means the Person named as such above until a successor replaces it in accordance
with the applicable provisions of this Indenture, and thereafter Trustee means each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person, Trustee as used
with respect to the Securities of any series means the Trustee with respect to Securities of that
series.
United States means the United States of America (including the States and the District of
Columbia) and its territories and possessions, which include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
U.S. Government Obligations means Government Obligations with respect to Securities payable
in Dollars.
5
SECTION 1.02
Other Definitions.
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Defined
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Term
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in Section
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Agent Members
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2.17
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Bankruptcy Custodian
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6.01
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Conversion Event
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6.01
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covenant defeasance
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8.01
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Event of Default
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6.01
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Exchange Rate
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2.11
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Judgment Currency
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6.10
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legal defeasance
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8.01
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mandatory sinking fund payment
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3.09
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optional sinking fund payment
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3.09
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Paying Agent
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2.05
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Registrar
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2.05
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Required Currency
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6.10
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Successor
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5.01
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SECTION 1.03
Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture (and if the Indenture is not qualified under the TIA
at that time, as if it were so qualified unless otherwise provided). The following TIA terms used
in this Indenture have the following meanings:
Commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Holder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company, any Subsidiary Guarantor or any other
obligor on the Securities.
All terms used in this Indenture that are defined by the TIA, defined by a TIA reference to
another statute or defined by an SEC rule under the TIA have the meanings so assigned to them.
6
SECTION 1.04
Rules of Construction.
Unless the context otherwise requires:
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(1)
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a term has the meaning assigned to it;
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(2)
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an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
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(3)
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or is not exclusive;
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(4)
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words in the singular include the plural, and in the plural
include the singular;
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(5)
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provisions apply to successive events and transactions; and
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(6)
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all references in this instrument to Articles and Sections are
references to the corresponding Articles and Sections in and of this
instrument.
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ARTICLE II
THE SECURITIES
SECTION 2.01
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth, or determined in the manner provided, in an Officers
Certificate of the Company or in a Company Order, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the Securities
of the series from the Securities of all other series);
(2) if there is to be a limit, the limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09,
2.12, 2.17, 3.07 or 9.05 and except for any Securities which, pursuant to Section 2.04 or
2.17, are deemed never to have been authenticated and delivered hereunder);
provided,
however,
that unless otherwise provided in the terms of the series, the authorized aggregate
principal amount of such series may be increased before or after the issuance of any
Securities of the series by a Board Resolution (or action pursuant to a Board Resolution) to
such effect;
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(3) whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in permanent global
form, as Global Securities or otherwise, and, if so, whether beneficial owners of interests
in any such Global Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in Section 2.17, and the
initial Depositary and Security Custodian, if any, for any Global Security or Securities of
such series;
(4) the manner in which any interest payable on a temporary Global Security on any
Interest Payment Date will be paid if other than in the manner provided in Section 2.14;
(5) the date or dates on which the principal of and premium (if any) on the Securities
of the series is payable or the method of determination thereof;
(6) the rate or rates, or the method of determination thereof, at which the Securities
of the series shall bear interest, if any, whether and under what circumstances Additional
Amounts with respect to such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest shall be payable
and the record date for the interest payable on any Securities on any Interest Payment Date,
or if other than provided herein, the Person to whom any interest on Securities of the
series shall be payable;
(7) the place or places where, subject to the provisions of Section 4.02, the principal
of, premium (if any) and interest on and any Additional Amounts with respect to the
Securities of the series shall be payable;
(8) the period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company must exercise any such
option, if different from those set forth herein;
(9) whether Securities of the series are entitled to the benefits of any Guarantee of
any Subsidiary Guarantor pursuant to this Indenture, the identity of any such Subsidiary
Guarantors and any terms of such Guarantee with respect to the Securities of the series in
addition to those set forth in Article X, or any exceptions to or changes to those set forth
in Article X;
(10) the obligation, if any, of the Company to redeem, purchase or repay Securities of
the series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions upon which Securities
of the series shall be redeemed, purchased or repaid in whole or in part pursuant to such
obligation;
8
(11) if other than denominations of $1,000 and any integral multiple thereof, the
denomination in which any Securities of that series shall be issuable;
(12) if other than Dollars, the currency or currencies (including composite currencies)
or the form, including equity securities, other debt securities (including Securities),
warrants or any other securities or property of the Company or any other Person, in which
payment of the principal of, premium (if any) and interest on and any Additional Amounts
with respect to the Securities of the series shall be payable;
(13) if the principal of, premium (if any) or interest on or any Additional Amounts
with respect to the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including composite currencies)
other than that in which the Securities are stated to be payable, the currency or currencies
(including composite currencies) in which payment of the principal of, premium (if any) and
interest on and any Additional Amounts with respect to Securities of such series as to which
such election is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(14) if the amount of payments of principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series may be determined with
reference to any commodities, currencies or indices, values, rates or prices or any other
index or formula, the manner in which such amounts shall be determined;
(15) if other than the entire principal amount thereof, the portion of the principal
amount of Securities of the series that shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 6.02;
(16) any additional means of satisfaction and discharge of this Indenture and any
additional conditions or limitations to discharge with respect to Securities of the series
and the related Guarantees, if any, pursuant to Article VIII or any modifications of or
deletions from such conditions or limitations;
(17) any deletions or modifications of or additions to the Events of Default set forth
in Section 6.01 or covenants of the Company or any Subsidiary Guarantor set forth in Article
IV pertaining to the Securities of the series;
(18) any restrictions or other provisions with respect to the transfer or exchange of
Securities of the series, which may amend, supplement, modify or supersede those contained
in this Article II;
(19) if the Securities of the series are to be convertible into or exchangeable for
capital stock, other debt securities (including Securities), warrants, other equity
securities or any other securities or property of the Company, any Subsidiary Guarantor or
any other Person, at the option of the Company or the Holder or upon the occurrence of any
condition or event, the terms and conditions for such conversion or exchange;
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(20) if the Securities of the series are to be entitled to the benefit of
Section 4.03(b) (and accordingly constitute Rule 144A Securities), that fact; and
(21) any other terms of the series (which terms shall not be prohibited by the
provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 2.03) set forth, or determined in the manner provided, in the Officers
Certificate or Company Order referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action, together with such Board Resolution,
shall be set forth in an Officers Certificate or certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers
Certificate or Company Order setting forth the terms of the series.
SECTION 2.02
Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by Section 2.01. In the absence of any such provisions with respect to the Securities
of any series, the Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.03
Forms Generally.
The Securities of each series shall be in fully registered form and in substantially such form
or forms (including temporary or permanent global form) established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto. The Securities may have notations,
legends or endorsements required by law, securities exchange rule, the Companys certificate of
incorporation, bylaws or other similar governing documents, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). A copy of the Board Resolution establishing the form or forms of
Securities of any series shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 2.04 for the authentication and delivery of such Securities.
The definitive Securities of each series shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by the Officers
executing such Securities, as evidenced by their execution thereof.
The Trustees certificate of authentication shall be in substantially the following form:
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This is one of the Securities of the series designated therein referred to 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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SECTION 2.04
Execution, Authentication, Delivery and Dating.
Two Officers of the Company shall sign the Securities on behalf of the Company and, with
respect to any related Guarantee, an Officer of each Subsidiary Guarantor shall sign the Notation
of Guarantee on behalf of such Subsidiary Guarantor, in each case by manual or facsimile signature.
If an Officer of the Company whose signature is on a Security no longer holds that office at the
time the Security is authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or the related
Guarantees, if any, or be valid or obligatory for any purpose until authenticated by the manual
signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence
that the Security has been authenticated under this Indenture. Notwithstanding the foregoing, if
any Security has been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company delivers such Security to the Trustee for cancellation as provided in
Section 2.13, together with a written statement (which need not comply with Section 11.05 and need
not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture or the related Guarantees, if any.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, and the Trustee shall authenticate and deliver such Securities for original issue
upon a Company Order for the authentication and delivery of such Securities or pursuant to such
procedures acceptable to the Trustee as may be specified from time to time by Company Order. Such
order shall specify the amount of the Securities to be authenticated, the date on which the
original issue of Securities is to be authenticated, the name or names of the initial Holder or
Holders and any other terms of the Securities of such series not otherwise determined. If provided
for in such procedures, such Company Order may authorize (1) authentication and delivery of
Securities of such series for original issue from time to time, with certain terms (including,
without limitation, the Maturity dates or dates, original issue date or dates and interest rate or
rates) that differ from Security to Security and (2) may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly authorized agent, which
instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by Section 2.01, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in addition to the Company Order referred to
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above and the other documents required by Section 11.04), and (subject to Section 7.01) shall
be fully protected in relying upon:
(a) an Officers Certificate setting forth the Board Resolution and, if applicable, an
appropriate record of any action taken pursuant thereto, as contemplated by the last
paragraph of Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established in conformity with the
provisions of this Indenture;
(ii) the terms of such Securities have been established in conformity with the
provisions of this Indenture; and
(iii) that such Securities and the related Guarantees, if any, when
authenticated and delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will constitute
valid and binding obligations of the Company and the Subsidiary Guarantors,
respectively, enforceable against the Company and the Subsidiary Guarantors,
respectively, in accordance with their respective terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws in effect
from time to time affecting the rights of creditors generally, and the application
of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers Certificate and Opinion of Counsel at the time of issuance of
each such Security, but such Officers Certificate and Opinion of Counsel shall be delivered at or
before the time of issuance of the first Security of the series to be issued.
The Trustee shall not be required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture would affect the Trustees own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. Unless limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, any Subsidiary Guarantor or any other
Affiliate of the Company.
Each Security shall be dated the date of its authentication.
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SECTION 2.05
Registrar and Paying Agent.
The Company shall maintain an office or agency for each series of Securities where Securities
of such series may be presented for registration of transfer or exchange (Registrar) and an
office or agency where Securities of such series may be presented for payment (Paying Agent).
The Registrar shall keep a register of the Securities of such series and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term Registrar includes any co-registrar and the term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying
Agent not a party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address
of any Agent not a party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any Subsidiary may act as
Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.06
Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of, premium, if any, or interest on or any Additional
Amounts with respect to Securities and will notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may require a Paying Agent
to pay all money held by it to the Trustee and to account for any funds disbursed. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee and to account for
any funds disbursed. Upon payment over to the Trustee and upon accounting for any funds disbursed,
the Paying Agent (if other than the Company, a Subsidiary Guarantor or another Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by
it as Paying Agent. Each Paying Agent shall otherwise comply with TIA § 317(b).
SECTION 2.07
Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar with respect to a series of Securities, the Company
shall furnish to the Trustee at least five Business Days before each Interest Payment Date with
respect to such series of Securities, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably require of the names
and addresses of Holders of such series, and the Company shall otherwise comply with TIA § 312(a).
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SECTION 2.08
Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided pursuant to Section 2.01:
When Securities of any series are presented to the Registrar with the request to register the
transfer of such Securities or to exchange such Securities for an equal principal amount of
Securities of the same series of like tenor and of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for such transactions are met;
provided, however
, that the
Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by a written instruction of transfer in form reasonably satisfactory to the
Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on
which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the Company shall execute and the Trustee
shall authenticate Securities at the Registrars written request and submission of the Securities
or Global Securities. No service charge shall be made to a Holder for any registration of transfer
or exchange (except as otherwise expressly permitted herein), but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection
therewith (other than such transfer tax or similar governmental charge payable upon exchanges
pursuant to Section 2.12, 3.07 or 9.05). The Trustee shall authenticate Securities in accordance
with the provisions of Section 2.04. Notwithstanding any other provisions of this Indenture to the
contrary, the Company shall not be required to register the transfer or exchange of (a) any
Security selected for redemption in whole or in part pursuant to Article III, except the unredeemed
portion of any Security being redeemed in part, or (b) any Security during the period beginning 15
Business Days prior to the mailing of notice of any offer to repurchase Securities of the series
required pursuant to the terms thereof or of redemption of Securities of a series to be redeemed
and ending at the close of business on the day of mailing.
SECTION 2.09
Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or if the Holder of a Security claims
that the Security has been destroyed, lost or stolen and the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of such Security, the Company
shall issue and the Trustee shall authenticate a replacement Security of the same series if the
Trustees requirements are met. If any such mutilated, destroyed, lost or stolen 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. If required by the Trustee, any Subsidiary Guarantor or the
Company, such Holder must furnish an indemnity bond that is sufficient in the judgment of the
Trustee and the Company to protect the Company, each Subsidiary Guarantor, the Trustee, any Agent
or any authenticating agent from any loss that any of them may suffer if a Security is replaced.
The Company and the Trustee may charge a Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
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SECTION 2.10
Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the
interest in a Global Security effected by the Trustee hereunder and those described in this
Section 2.10 as not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the principal amount of any Security is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.
A Security does not cease to be outstanding because the Company, a Subsidiary Guarantor or
another Affiliate of the Company or an Affiliate of a Subsidiary Guarantor holds the Security.
SECTION 2.11
Original Issue Discount, Foreign-Currency Denominated and Treasury Securities.
In determining whether the Holders of the required principal amount of Securities have
concurred in any direction, amendment, supplement, waiver or consent, (a) the principal amount of
an Original Issue Discount Security shall be the principal amount thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to
Section 6.02, (b) the principal amount of a Security denominated in a foreign currency shall be the
Dollar equivalent, as determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is certified for customs purposes by
the Federal Reserve Bank of New York (the Exchange Rate) on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent, as determined by the Company by reference to the Exchange Rate on the date of
original issuance of such Security, of the amount determined as provided in (a) above), of such
Security and (c) Securities owned by the Company, a Subsidiary Guarantor or any other obligor upon
the Securities or any Affiliate of the Company or a Subsidiary Guarantor or of such other obligor
shall be disregarded, except that, for the purpose of determining whether the Trustee shall be
protected in relying upon any such direction, amendment, supplement, waiver or consent, only
Securities that a Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded.
SECTION 2.12
Temporary Securities.
Until definitive Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities in exchange for temporary Securities. Until
so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities.
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SECTION 2.13
Cancellation.
The Company or any Subsidiary Guarantor 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, payment or redemption or for credit
against any sinking fund payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, redemption, replacement or cancellation or for credit
against any sinking fund. Unless the Company shall direct in writing that canceled Securities be
returned to it, after written notice to the Company all canceled Securities held by the Trustee
shall be disposed of in accordance with the usual disposal procedures of the Trustee, and the
Trustee shall maintain a record of their disposal. The Company may not issue new Securities to
replace Securities that have been paid or that have been delivered to the Trustee for cancellation.
SECTION 2.14
Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01, interest (except defaulted
interest) on any Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Persons who are registered Holders of that Security at
the close of business on the record date next preceding such Interest Payment Date, even if such
Securities are canceled after such record date and on or before such Interest Payment Date. The
Holder must surrender a Security to a Paying Agent to collect principal payments. Unless otherwise
provided with respect to the Securities of any series, the Company will pay the principal of,
premium (if any) and interest on and any Additional Amounts with respect to the Securities in
Dollars. Such amounts shall be payable at the offices of the Trustee or any Paying Agent,
provided
that at the option of the Company, the Company may pay such amounts (1) by wire transfer with
respect to Global Securities or (2) by check payable in such money mailed to a Holders registered
address with respect to any Securities.
If the Company defaults in a payment of interest on the Securities of any series, the Company
shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest on the
defaulted interest, in each case at the rate provided in the Securities of such series and in
Section 4.01. The Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. At least 15 days before any special record date selected by the
Company, the Company (or the Trustee, in the name of and at the expense of the Company upon 20
days prior written notice from the Company setting forth such special record date and the interest
amount to be paid) shall mail to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.15
Persons Deemed Owners.
The Company, the Subsidiary Guarantors, the Trustee, any Agent and any authenticating agent
may treat the Person in whose name any Security is registered as the owner of such Security for the
purpose of receiving payments of principal of, premium (if any) or interest on or any Additional
Amounts with respect to such Security and for all other purposes. None of the Company, any
Subsidiary Guarantor, the Trustee, any Agent or any authenticating agent shall be affected by any
notice to the contrary.
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SECTION 2.16
Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year comprising
twelve 30-day months.
SECTION 2.17
Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a Global Security, as contemplated by
Section 2.01, then, notwithstanding clause (10) of Section 2.01 and the provisions of Section 2.02,
any such Global Security shall represent such of the outstanding Securities of such series as shall
be specified therein and may provide that it shall represent the aggregate amount of outstanding
Securities from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, transfers or redemptions. Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, of outstanding Securities represented thereby
shall be made by the Trustee (i) in such manner and upon instructions given by such Person or
Persons as shall be specified in such Security or in a Company Order to be delivered to the Trustee
pursuant to Section 2.04 or (ii) otherwise in accordance with written instructions or such other
written form of instructions as is customary for the Depositary for such Security, from such
Depositary or its nominee on behalf of any Person having a beneficial interest in such Global
Security. Subject to the provisions of Section 2.04 and, if applicable, Section 2.12, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified in such Security or in the applicable Company
Order. With respect to the Securities of any series that are represented by a Global Security, the
Company and the Subsidiary Guarantors authorize the execution and delivery by the Trustee of a
letter of representations or other similar agreement or instrument in the form customarily provided
for by the Depositary appointed with respect to such Global Security. Any Global Security may be
deposited with the Depositary or its nominee, or may remain in the custody of the Trustee or the
Security Custodian therefor pursuant to a FAST Balance Certificate Agreement or similar agreement
between the Trustee and the Depositary. If a Company Order has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of
a Security in global form shall be in writing but need not comply with Section 11.05 and need not
be accompanied by an Opinion of Counsel.
Members of, or participants in, the Depositary (Agent Members) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depositary, or the
Trustee or the Security Custodian as its custodian, or under such Global Security, and the
Depositary may be treated by the Company, any Subsidiary Guarantor, the Trustee or the Security
Custodian and any agent of the Company, any Subsidiary Guarantor, the Trustee or the Security
Custodian as the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, (i) the registered holder of a Global Security of a series may grant
proxies and otherwise authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action that a Holder of Securities of such series is
entitled to take under this Indenture or the Securities of such series and (ii) nothing herein
shall prevent the Company, any Subsidiary Guarantor, the Trustee or the
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Security Custodian, or any agent of the Company, any Subsidiary Guarantor, the Trustee or the
Security Custodian, from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a beneficial owner of any
Security.
Notwithstanding Section 2.08, and except as otherwise provided pursuant to Section 2.01:
Transfers of a Global Security shall be limited to transfers of such Global Security in whole, but
not in part, to the Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Security may be transferred in accordance with the rules and
procedures of the Depositary. Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in a Global Security if, and only if, either (1) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary for the Global
Security and a successor Depositary is not appointed by the Company within 90 days of such notice,
(2) an Event of Default has occurred with respect to such series and is continuing and the
Registrar has received a request from the Depositary to issue Securities in lieu of all or a
portion of the Global Security (in which case the Company shall deliver Securities within 30 days
of such request) or (3) the Company determines not to have the Securities represented by a Global
Security.
In connection with any transfer of a portion of the beneficial interests in a Global Security
to beneficial owners pursuant to this Section 2.17, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Global Security in an amount equal
to the principal amount of the beneficial interests in the Global Security to be transferred, and
the Company shall execute, and the Trustee upon receipt of a Company Order for the authentication
and delivery of Securities shall authenticate and deliver, one or more Securities of the same
series of like tenor and amount.
In connection with the transfer of all the beneficial interests in a Global Security to
beneficial owners pursuant to this Section 2.17, the Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its
beneficial interests in the Global Security, an equal aggregate principal amount of Securities of
authorized denominations.
None of the Company, any Subsidiary Guarantor or the Trustee will have any responsibility or
liability for any aspect of the records relating to, or payments made on account of, Securities by
the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating
to such Securities. None of the Company, any Subsidiary Guarantor or the Trustee shall be liable
for any delay by the related Global Security Holder or the Depositary in identifying the beneficial
owners, and each such Person may conclusively rely on, and shall be protected in relying on,
instructions from such Global Security Holder or the Depositary for all purposes (including with
respect to the registration and delivery, and the respective principal amounts, of the Securities
to be issued).
The provisions of the last sentence of the third paragraph of Section 2.04 shall apply to any
Global Security if such Global Security was never issued and sold by the Company and the Company or
a Subsidiary Guarantor delivers to the Trustee the Global Security together
18
with written instructions (which need not comply with Section 11.05 and need not be
accompanied by an Opinion of Counsel) with regard to the cancellation or reduction in the principal
amount of Securities represented thereby, together with the written statement contemplated by the
last sentence of the third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14, unless otherwise specified as
contemplated by Section 2.01, payment of principal of, premium (if any) and interest on and any
Additional Amounts with respect to any Global Security shall be made to the Person or Persons
specified therein.
ARTICLE III
REDEMPTION
SECTION 3.01
Applicability of Article.
Securities of any series that are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01
for Securities of any series) in accordance with this Article III.
SECTION 3.02
Notice to the Trustee.
If the Company elects to redeem Securities of any series pursuant to this Indenture, it shall
notify the Trustee of the Redemption Date and the principal amount of Securities of such series to
be redeemed. The Company shall so notify the Trustee at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) by delivering to the Trustee an
Officers Certificate stating that such redemption will comply with the provisions of this
Indenture and of the Securities of such series. Any such notice may be canceled at any time prior
to the mailing of such notice of such redemption to any Holder and shall thereupon be void and of
no effect. A redemption or notice thereof may be subject to one or more conditions.
SECTION 3.03
Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities
of such series of a specified tenor are to be redeemed), 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 of such series (and tenor) not previously called for redemption, either at
random, by lot or by such other method as the Trustee shall deem fair and appropriate and that may
provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of that series or any integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the minimum authorized denomination for
Securities of that series or of the principal amount of Global Securities of such series.
The Trustee shall promptly notify the Company and the Registrar in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
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For purposes of this Indenture, unless the context otherwise requires, all provisions relating
to redemption of Securities shall relate, in the case of any of the Securities redeemed or to be
redeemed only in part, to the portion of the principal amount thereof which has been or is to be
redeemed.
SECTION 3.04
Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at the address of such Holder appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company and the Subsidiary Guarantors default in making the
redemption payment, interest on Securities called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of such Securities is
to receive payment of the Redemption Price upon surrender to the Paying Agent of the
Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of the principal amount
thereof to be redeemed and that on and after the Redemption Date, upon surrender for
cancellation of such Security to the Paying Agent, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be issued without
charge to the Holder;
(5) that Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price and the name and address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if such is the case;
(7) the CUSIP number, if any, relating to such Securities; and
(8) if the redemption or notice thereof is subject to one or more conditions, a
statement to such effect and the condition or conditions precedent.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys written request, by the Trustee in the name and at the
expense of the Company.
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SECTION 3.05
Effect of Notice of Redemption.
Once notice of redemption is mailed, unless the redemption or notice thereof is subject to one
or more conditions as specified in the notice, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price. Upon surrender to the Paying Agent,
such Securities called for redemption shall be paid at the Redemption Price, but interest
installments whose maturity is on or prior to such Redemption Date will be payable on the relevant
Interest Payment Dates to the Holders of record at the close of business on the relevant record
dates specified pursuant to Section 2.01.
SECTION 3.06
Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on any Redemption Date, the Company or a
Subsidiary Guarantor shall deposit with the Trustee or the Paying Agent (or, if the Company or a
Subsidiary Guarantor is acting as the Paying Agent, segregate and hold in trust as provided in
Section 2.06) an amount of money in same day funds sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued interest on and any
Additional Amounts with respect to, the Securities or portions thereof which are to be redeemed on
that date, other than Securities or portions thereof called for redemption on that date which have
been delivered by the Company or a Subsidiary Guarantor to the Trustee for cancellation.
If the Company or a Subsidiary Guarantor complies with the preceding paragraph, then, unless
the Company or the Subsidiary Guarantors default in the payment of such Redemption Price, interest
on the Securities to be redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Securities are presented for payment, and the Holders of such Securities shall
have no further rights with respect to such Securities except for the right to receive the
Redemption Price upon surrender of such Securities. If any Security called for redemption shall
not be so paid upon surrender thereof for redemption, the principal, premium, if any, any
Additional Amounts, and, to the extent lawful, accrued interest thereon shall, until paid, bear
interest from the Redemption Date at the rate specified pursuant to Section 2.01 or provided in the
Securities or, in the case of Original Issue Discount Securities, such Securities yield to
maturity.
SECTION 3.07
Securities Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Security to be redeemed in part, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such Security without
service charge a new Security or Securities, of the same series and of any authorized denomination
as requested by such Holder in aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal of the Security so surrendered that is not redeemed.
SECTION 3.08
Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01, the Company, any Subsidiary
Guarantor or any Affiliate of the Company or any Subsidiary Guarantor may, subject to applicable
law, at any time purchase or otherwise acquire Securities in the open market or by
21
private agreement. Any such acquisition shall not operate as or be deemed for any purpose to
be a redemption of the indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company or a Subsidiary Guarantor may be delivered to the Trustee and, upon such
delivery, the indebtedness represented thereby shall be deemed to be satisfied. Section 2.13 shall
apply to all Securities so delivered.
SECTION 3.09
Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. Unless otherwise provided by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction as provided in
Section 3.10. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series and by this Article III.
SECTION 3.10
Satisfaction of Sinking Fund Payments with Securities.
The Company or a Subsidiary Guarantor may deliver outstanding Securities of a series (other
than any previously called for redemption) and may apply as a credit Securities of a series that
have been redeemed either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such series
of Securities;
provided
that such Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 3.11
Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to
each sinking fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officers Certificate of the Company specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by crediting Securities of that series pursuant to Section 3.10 and
will also deliver or cause to be delivered to the Trustee any Securities to be so delivered.
Failure of the Company to timely deliver or cause to be delivered such Officers Certificate and
Securities specified in this paragraph, if any, shall not constitute a default but shall constitute
the election of the Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the Company will make
no optional sinking fund payment with respect to such series as provided in this Section.
22
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $100,000 (or the Dollar equivalent thereof based on the
applicable Exchange Rate on the date of original issue of the applicable Securities) or a lesser
sum if the Company shall so request with respect to the Securities of any particular series, such
cash shall be applied on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $100,000 (or the Dollar equivalent thereof
as aforesaid) or less and the Company makes no such request then it shall be carried over until a
sum in excess of $100,000 (or the Dollar equivalent thereof as aforesaid) is available. Not less
than 30 days before each such sinking fund payment date, the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in Section 3.03 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in
the manner provided in Section 3.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01
Payment of Securities.
The Company shall pay the principal of, premium (if any) and interest on and any Additional
Amounts with respect to the Securities of each series on the dates and in the manner provided in
the Securities of such series and in this Indenture. Principal, premium, interest and any
Additional Amounts shall be considered paid on the date due if the Paying Agent (other than the
Company, a Subsidiary Guarantor or other Subsidiary) holds on that date money deposited by the
Company or a Subsidiary Guarantor designated for and sufficient to pay all principal, premium,
interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium (if any), at a rate equal to the then applicable
interest rate on the Securities to the extent lawful; and it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and any Additional Amount (without regard to any applicable grace period) at the same rate
to the extent lawful.
SECTION 4.02
Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency (which may be an office of the Trustee, the Registrar or the Paying Agent) where Securities
of that series may be presented for registration of transfer or exchange, where Securities of that
series may be presented for payment and where notices and demands to or upon the Company or a
Subsidiary Guarantor in respect of the Securities of that series and this Indenture may be served.
Unless otherwise designated by the Company by written notice to the Trustee and the Subsidiary
Guarantors, such office or agency shall be the office of the Trustee at
23
1445 Ross Avenue, 2nd Floor, MAC T5303-02J, Dallas, TX 75202. The Company will give prompt
written notice to the Trustee and the Subsidiary Guarantors of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee and the Subsidiary Guarantors with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided, however
, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 4.03
SEC Reports; Financial Statements.
(a) If the Company is subject to the requirements of Section 13 or 15(d) of the Exchange Act,
the Company shall file with the Trustee, within 15 days after it files the same with the SEC,
copies of the annual reports and the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations prescribe) that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If
this Indenture is qualified under the TIA, but not otherwise, the Company shall also comply with
the provisions of TIA § 314(a). Delivery of such reports, information and documents to the Trustee
shall be for informational purposes only, and the Trustees receipt thereof shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Companys and the Subsidiary Guarantors compliance with any of their
covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers
Certificates or certificates delivered pursuant to Section 4.04).
(b) If the Company is not subject to the requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall furnish to all Holders of Rule 144A Securities and prospective purchasers of
Rule 144A Securities designated by the Holders of Rule 144A Securities, promptly upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4) promulgated under the
Securities Act of 1933, as amended.
SECTION 4.04
Compliance Certificate.
(a) Each of the Company and the Subsidiary Guarantors shall deliver to the Trustee, within 120
days after the end of each fiscal year of the Company, a statement signed by an Officer of the
Company and each Subsidiary Guarantor, respectively, which need not constitute an Officers
Certificate, complying with TIA § 314(a)(4) and stating that in the course of performance by the
signing Officer of his duties as such Officer of the Company or such Subsidiary Guarantor, as the
case may be, he would normally obtain knowledge of the keeping, observing, performing and
fulfilling by the Company or such Subsidiary Guarantor, as the case may be, of its obligations
under this Indenture, and further stating that to the best of his
24
knowledge the Company or such Subsidiary Guarantor, as the case may be, has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or Events of Default
of which such Officer may have knowledge and what action the Company or such Subsidiary Guarantor,
as the case may be, is taking or proposes to take with respect thereto).
(b) The Company or any Subsidiary Guarantor shall, so long as Securities of any series are
outstanding, deliver to the Trustee, forthwith upon any Officer of the Company or such Subsidiary
Guarantor, as the case may be, becoming aware of any Default or Event of Default under this
Indenture, an Officers Certificate specifying such Default or Event of Default and what action the
Company or such Subsidiary Guarantor, as the case may be, is taking or proposes to take with
respect thereto.
SECTION 4.05
Corporate Existence.
Subject to Article V, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence.
SECTION 4.06
Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Subsidiary Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive it from paying all or any portion of the principal of or interest on
the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each of the Company and the Subsidiary Guarantors hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 4.07
Additional Amounts.
If the Securities of a series expressly provide for the payment of Additional Amounts, the
Company will pay to the Holder of any Security of such series Additional Amounts as expressly
provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security of any series or the
net proceeds received from the sale or exchange of any Security of any series, such mention shall
be deemed to include mention of the payment of Additional Amounts provided for in this Section 4.07
to the extent that, in such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section 4.07 and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not made.
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ARTICLE V
SUCCESSORS
SECTION 5.01
Limitations on Mergers and Consolidations.
Neither the Company nor any Subsidiary Guarantor shall, in any transaction or series of
transactions, consolidate with or merge into any Person, or sell, lease, convey, transfer or
otherwise dispose of all or substantially all of its assets to any Person (other than a
consolidation or merger of one or more Subsidiary Guarantors into the Company or a merger of
Subsidiary Guarantors, or a sale, lease, conveyance, transfer or other disposition of all or
substantially all of the assets of a Subsidiary Guarantor to the Company or of a Subsidiary
Guarantor to another Subsidiary Guarantor), unless:
(1) either (a) the Company or such Subsidiary Guarantor, as the case may be, shall be
the continuing Person or (b) the Person (if other than the Company or such Subsidiary
Guarantor) formed by such consolidation or into which the Company or such Subsidiary
Guarantor is merged, or to which such sale, lease, conveyance, transfer or other disposition
shall be made (collectively, the Successor), expressly assumes by supplemental indenture
the due and punctual payment of the principal of, premium (if any) and interest on and any
Additional Amounts with respect to all the Securities and the performance of the Companys
covenants and obligations under this Indenture and the Securities, or, in the case of such
Subsidiary Guarantor, the performance of the Guarantee and such Subsidiary Guarantors
covenants and obligations under this Indenture and the Securities;
(2) immediately after giving effect to such transaction or series of transactions, no
Default or Event of Default shall have occurred and be continuing or would result therefrom;
and
(3) the Company delivers to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that the transaction and such supplemental indenture comply with this
Indenture.
SECTION 5.02
Successor Person Substituted.
Upon any consolidation or merger of the Company or a Subsidiary Guarantor, as the case may be,
or any sale, lease, conveyance, transfer or other disposition of all or substantially all of the
assets of the Company or such Subsidiary Guarantor in accordance with Section 5.01, the Successor
formed by such consolidation or into or with which the Company or the Subsidiary Guarantor is
merged or to which such sale, lease, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of the Company or such
Subsidiary Guarantor, as the case may be, under this Indenture and the Securities with the same
effect as if such Successor had been named as the Company or such Subsidiary Guarantor, as the case
may be, herein and the predecessor Company or Subsidiary Guarantor, in the case of a sale,
conveyance, transfer or other disposition, shall be
26
released from all obligations under this Indenture, the Securities and, in the case of a
Subsidiary Guarantor, the Guarantee.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01
Events of Default.
Unless either inapplicable to a particular series or specifically deleted or modified in or
pursuant to the supplemental indenture or Board Resolution establishing such series of Securities
or in the form of Security for such series, an Event of Default, wherever used herein with
respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of interest on or any Additional Amounts with
respect to any Security of that series when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of (A) the principal of any Security of that
series at its Maturity or (B) premium (if any) on any Security of that series when the same
becomes due and payable;
(3) the Company defaults in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series, and such default continues for a period of 30 days;
(4) the Company, or if any series of Securities outstanding is entitled to the benefits
of a Guarantee, any Subsidiary Guarantor, fails to comply with any of its other covenants or
agreements in, or provisions of, the Securities of such series or this Indenture (other than
an agreement, covenant or provision that has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other than that series) which
shall not have been remedied within the specified period after written notice, as specified
in the last paragraph of this Section 6.01;
(5) the Company, or if that series of Securities is entitled to the benefits of a
Guarantee by any Subsidiary Guarantor, any Subsidiary Guarantor, if it is a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary
case,
(C) consents to the appointment of a Bankruptcy Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
27
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that remains unstayed and in effect for 90 days and that:
(A) is for relief against the Company or any Subsidiary Guarantor with respect
to such series, if it is a Significant Subsidiary, as debtor in an involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or any Subsidiary Guarantor,
if it is a Significant Subsidiary, or a Bankruptcy Custodian for all or
substantially all of the property of the Company, or any Subsidiary Guarantor with
respect to such series, if it is a Significant Subsidiary, or
(C) orders the liquidation of the Company or any Subsidiary Guarantor with
respect to such series, if it is a Significant Subsidiary; or
(7) any Guarantee of any Subsidiary Guarantor that is a Significant Subsidiary
with respect to such series ceases to be in full force and effect with respect to
Securities of that series (except as otherwise provided in this Indenture) or is
declared null and void in a judicial proceeding, or any such Subsidiary Guarantor
denies or disaffirms its obligations under this Indenture or such Guarantee; or
(8) any other Event of Default provided with respect to Securities of that series
occurs.
The term Bankruptcy Custodian means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
The Trustee shall not be deemed to know or have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a Default or Event of Default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture.
When a Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01, if the principal of, premium
(if any) or interest on or Additional Amounts with respect to any Security is payable in a currency
or currencies (including a composite currency) other than Dollars and such currency or currencies
are not available to the Company or a Subsidiary Guarantor for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the Company or such
Subsidiary Guarantor (a Conversion Event), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in an amount equal to
the Dollar equivalent of the amount payable in such other currency, as determined by the Company or
the Subsidiary Guarantor, as the case may be, by reference to the Exchange Rate on the date of such
payment, or, if such rate is not then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this Section 6.01, any payment made
under such circumstances in Dollars where the required
28
payment is in a currency other than Dollars will not constitute an Event of Default under this
Indenture.
Promptly after the occurrence of a Conversion Event, the Company or a Subsidiary Guarantor
shall give written notice thereof to the Trustee; and the Trustee, promptly after receipt of such
notice, shall give notice thereof in the manner provided in Section 11.02 to the Holders. Promptly
after the making of any payment in Dollars as a result of a Conversion Event, the Company or a
Subsidiary Guarantor, as the case may be, shall give notice in the manner provided in Section 11.02
to the Holders, setting forth the applicable Exchange Rate and describing the calculation of such
payments.
A Default under clause (4) or (7) of this Section 6.01 is not an Event of Default until the
Trustee notifies the Company and the Subsidiary Guarantors, or the Holders of at least 25% in
principal amount of the then outstanding Securities of the series affected by such Default notify
the Company, the Subsidiary Guarantors and the Trustee, of the Default, and the Company or the
applicable Subsidiary Guarantor, as the case may be, fails to cure the Default within 90 days after
receipt of the notice. The notice must specify the Default, demand that it be remedied and state
that the notice is a Notice of Default.
SECTION 6.02
Acceleration.
If an Event of Default with respect to any Securities of any series at the time outstanding
(other than an Event of Default specified in clause (5) or (6) of Section 6.01) occurs and is
continuing, the Trustee by notice to the Company and the Subsidiary Guarantors, or the Holders of
at least 25% in principal amount of the then outstanding Securities of the series affected by such
Event of Default by notice to the Company, the Subsidiary Guarantors and the Trustee, may declare
the principal of (or, if any such Securities are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) and all accrued and unpaid
interest on all then outstanding Securities of such series to be due and payable. Upon any such
declaration, the amounts due and payable on the Securities shall be due and payable immediately.
If an Event of Default specified in clause (5) or (6) of Section 6.01 hereof occurs, such amounts
shall
ipso facto
become and be immediately due and payable without any declaration, notice or other
act on the part of the Trustee or any Holder. The Holders of a majority in principal amount of the
then outstanding Securities of the series affected by such Event of Default, by written notice to
the Trustee, may rescind an acceleration and its consequences (other than nonpayment of principal
of or premium or interest on or any Additional Amounts with respect to the Securities) if the
rescission would not conflict with any judgment or decree and if all existing Events of Default
with respect to Securities of that series have been cured or waived, except nonpayment of
principal, premium, interest or any Additional Amounts that has become due solely because of the
acceleration.
SECTION 6.03
Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of, or premium, if any, or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
29
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 Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04
Waiver of Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in principal amount of the then
outstanding Securities of any series by notice to the Trustee may waive an existing or past Default
or Event of Default with respect to such series and its consequences (including waivers obtained in
connection with a tender offer or exchange offer for Securities of such series or a solicitation of
consents in respect of Securities of such series,
provided
that in each case such offer or
solicitation is made to all Holders of then outstanding Securities of such series), except (1) a
continuing Default or Event of Default in the payment of the principal of, or premium, if any, or
interest on or any Additional Amounts with respect to any Security or (2) a continued Default in
respect of a provision that under Section 9.02 cannot be amended or supplemented without the
consent of each Holder affected. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.05
Control by Majority.
With respect to Securities of any series, the Holders of a majority in principal amount of the
then outstanding Securities of such series may direct in writing the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising any trust or power
conferred on it relating to or arising under an Event of Default described in clause (1), (2), (3)
or (7) of Section 6.01. However, the Trustee may refuse to follow any direction that conflicts
with applicable law or this Indenture, that the Trustee determines may be unduly prejudicial to the
rights of other Holders, or that may 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 action hereunder, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion from Holders directing the Trustee
against all losses and expenses caused by taking or not taking such action.
SECTION 6.06
Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any series may pursue a remedy with
respect to this Indenture or the Securities of such series or any related Guarantees only if:
(1) the Holder gives to the Trustee written notice of a continuing Event of Default
with respect to such series;
(2) the Holders of at least 25% in principal amount of the then outstanding Securities
of such series make a written request to the Trustee to pursue the remedy;
30
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
SECTION 6.07
Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of principal of and premium, if any, and interest on and any Additional Amounts
with respect to the Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of the Holder.
SECTION 6.08
Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of Section 6.01 hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company or a Subsidiary Guarantor for the amount of principal, premium
(if any), interest and any Additional Amounts remaining unpaid on the Securities of the series
affected by the Event of Default, and interest on overdue principal and premium, if any, and, to
the extent lawful, interest on overdue interest, and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09
Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents and to
take such actions, including participating as a member, voting or otherwise, of any committee of
creditors, as may be necessary or advisable to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to the Company or a
Subsidiary Guarantor or their respective creditors or properties and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any Bankruptcy Custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.07. To the extent that
the payment of any such compensation, expenses, disbursements
31
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the Holders of the
Securities may be entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the 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.
If the Trustee collects any money pursuant to this Article VI, it shall pay out the money in
the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities in respect of which or
for the benefit of which such money has been collected, for principal, premium (if any),
interest and any Additional Amounts ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal, premium (if any),
interest and any Additional Amounts, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix record dates and payment dates
for any payment to Holders pursuant to this Article VI.
To the fullest extent allowed under applicable law, if for the purpose of obtaining a judgment
against the Company or a Subsidiary Guarantor in any court it is necessary to convert the sum due
in respect of the principal of, premium (if any) or interest on or Additional Amounts with respect
to the Securities of any series (the Required Currency) into a currency in which a judgment will
be rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in The City of New York next
preceding that on which final judgment is given. None of the Company, any Subsidiary Guarantor or
the Trustee shall be liable for any shortfall nor shall it benefit from any windfall in payments to
Holders of Securities under this Section 6.10 caused by a change in exchange rates between the time
the amount of a judgment against it is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section 6.10 to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by the Company and the
Subsidiary Guarantors on the claim or claims underlying such judgment.
32
SECTION 6.11
Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01
Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
such exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such persons own affairs.
(b) Except during the continuance of an Event of Default with respect to the Securities of any
series:
(1) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(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 or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine such certificates and opinions to determine
whether, on their face, they appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of Section 7.01(b);
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(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 6.05.
33
(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power
unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) 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 and the Subsidiary Guarantors. Money held in trust
by the Trustee need not be segregated from other funds except to the extent required by law. All
money received by the Trustee shall, until applied as herein provided, be held in trust for the
payment of the principal of, premium (if any) and interest on and Additional Amounts with respect
to the Securities.
SECTION 7.02
Rights of Trustee.
(a) The Trustee may conclusively rely on any document 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.
(b) Before the Trustee acts or refrains from acting, it may require instruction, an Officers
Certificate or an Opinion of Counsel or both to be provided. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such instruction, Officers
Certificate or Opinion of Counsel. The Trustee may consult at the Companys expense with counsel
of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through 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 conferred upon it by this
Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company or any Subsidiary Guarantor shall be sufficient if signed by an Officer
of the Company.
SECTION 7.03
May Hold Securities.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company, any Subsidiary Guarantor or any of their
respective Affiliates with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights and duties. However, the Trustee is subject to Sections 7.10 and 7.11.
34
SECTION 7.04
Trustees Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Companys use of the proceeds from the Securities
or any money paid to the Company or any Subsidiary Guarantor or upon the Companys or such
Subsidiary Guarantors direction under any provision hereof, it shall not be responsible for the
use or application of any money received by any Paying Agent other than the Trustee and it shall
not be responsible for any statement or recital herein or any statement in the Securities other
than its certificate of authentication.
SECTION 7.05
Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any series occurs and is
continuing and it is known to the Trustee, the Trustee shall mail to Holders of Securities of such
series a 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, premium (if any) and interest on
and Additional Amounts or any sinking fund installment with respect to the Securities of such
series, the Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the interests of Holders of
Securities of such series.
SECTION 7.06
Reports by Trustee to Holders.
Within 60 days after each April 1 of each year after the execution of this Indenture, the
Trustee shall mail to Holders of a series, the Subsidiary Guarantors and the Company a brief report
dated as of such reporting date that complies with TIA § 313(a);
provided, however
, that if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date
with respect to a series, no report need be transmitted to Holders of such series. The Trustee
also shall comply with TIA § 313(b). The Trustee shall also transmit by mail all reports if and as
required by TIA §§ 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders of a series of Securities shall be
filed by the Company or a Subsidiary Guarantor with the SEC and each securities exchange, if any,
on which the Securities of such series are listed. The Company shall notify the Trustee if and when
any series of Securities is listed on any securities exchange.
SECTION 7.07
Compensation and Indemnity.
The Company agrees to pay to the Trustee for its acceptance of this Indenture and services
hereunder such compensation as the Company and the Trustee shall from time to time agree in
writing. The Trustees compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Company agrees to reimburse the Trustee upon request for all reasonable
disbursements, advances and expenses incurred by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustees agents and counsel.
The Company hereby indemnifies the Trustee and any predecessor Trustee against any and all
loss, liability, damage, claim or expense, including taxes (other than taxes based upon, measured
by or determined by the income of the Trustee), incurred by it arising out
35
of or in connection with the acceptance or administration of its duties under this Indenture,
except as set forth in the next following paragraph. The Trustee shall notify the Company and the
Subsidiary Guarantors promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent.
The Company shall not be obligated to reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through the Trustees negligence or bad faith.
To secure the payment obligations of the Company in this Section 7.07, the Trustee shall have
a lien prior to the Securities on all money or property held or collected by the Trustee, except
that held in trust to pay principal of, premium (if any) and interest on and any Additional Amounts
with respect to Securities of any series. Such lien and the Companys obligations under this
Section 7.07 shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(5) or (6) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08
Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section
7.08.
The Trustee may resign and be discharged at any time with respect to the Securities of one or
more series by so notifying the Company and the Subsidiary Guarantors. The Holders of a majority
in principal amount of the then outstanding Securities of any series may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee, the Company and the
Subsidiary Guarantors. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(3) a Bankruptcy Custodian or 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 or if a vacancy exists in the office of Trustee for any
reason, with respect to the Securities of one or more series, the Company shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series). Within one year after the successor Trustee
36
with respect to the Securities of any series takes office, the Holders of a majority in
principal amount of the Securities of such series then outstanding may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any series does not take office
within 30 days after the retiring or removed Trustee resigns or is removed, the retiring or removed
Trustee, the Company, any Subsidiary Guarantor or the Holders of at least 10% in principal amount
of the then outstanding Securities of such series may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of a series fails to comply with Section 7.10,
any Holder of Securities of such series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee with respect to the Securities of
such series.
In case of the appointment of a successor Trustee with respect to all Securities, each such
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee, to
the Company and to the Subsidiary Guarantors. 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 retiring Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders. 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 7.07.
In case of the appointment of a successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the Subsidiary Guarantors, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more (but not all) series shall execute
and deliver an indenture supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights, powers and duties
of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall confirm that all the rights, powers and duties of the retiring
Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee. Nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee. Upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee shall have all the rights, powers
and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates. On request of the Company or any successor
Trustee, such retiring Trustee shall transfer to such successor Trustee all property held by such
retiring Trustee as Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
37
Notwithstanding replacement of the Trustee or Trustees pursuant to this Section 7.08, the
obligations of the Company under Section 7.07 shall continue for the benefit of the retiring
Trustee or Trustees.
SECTION 7.09
Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee;
provided, however
, that in the
case of a transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustees liabilities
hereunder.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the 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; and in all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10
Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a corporation or banking or
trust company or association organized and doing business under the laws of the United States, any
State thereof or the District of Columbia and authorized under such laws to exercise corporate
trust power, shall be subject to supervision or examination by Federal or State (or the District of
Columbia) authority and shall have, or be a subsidiary of a bank or bank holding company having, a
combined capital and surplus of at least $50 million as set forth in its most recent published
annual report of condition.
The Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1),
310(a)(2) and 310(a)(5). The Trustee is subject to and shall comply with the provisions of TIA
§ 310(b) during the period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the penultimate
paragraph of TIA § 310(b).
SECTION 7.11
Preferential Collection of Claims Against the Company or a Subsidiary Guarantor.
The Trustee is subject to and shall comply with the provisions of 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 therein.
38
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01
Termination of the Companys and the Subsidiary Guarantors Obligations.
(a) This Indenture shall cease to be of further effect with respect to the Securities of a
series (except that the Companys obligations under Section 7.07, the Trustees and Paying Agents
obligations under Section 8.03 and the rights, powers, protections and privileges accorded the
Trustee under Article VII shall survive), and the Trustee, on demand of the Company, shall execute
proper instruments acknowledging the satisfaction and discharge of this Indenture with respect to
the Securities of such series, when:
(1) either:
(A) all outstanding Securities of such series theretofore authenticated and
issued (other than destroyed, lost or stolen Securities that have been replaced or
paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities of such series not theretofore delivered to the
Trustee for cancellation:
|
(i)
|
|
have become due and payable, or
|
|
|
(ii)
|
|
will become due and payable at
their Stated Maturity within one year, or
|
|
|
(iii)
|
|
are to be called for redemption
within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
|
and, in the case of clause (i), (ii) or (iii) above, the Company or a Subsidiary
Guarantor has irrevocably deposited or caused to be deposited with the Trustee as
funds (immediately available to the Holders in the case of clause (i)) in trust for
such purpose (x) cash in an amount, or (y) Government Obligations, maturing as to
principal and interest at such times and in such amounts as will ensure the
availability of cash in an amount or (z) a combination thereof, which will be
sufficient, in the opinion (in the case of clauses (y) and (z)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on the Securities of such series for principal and interest to the date
of such deposit (in the case of Securities which have become due and payable) or for
principal, premium, if any, and interest to the Stated Maturity or Redemption Date,
as the case may be; or
39
(C) the Company and the Subsidiary Guarantors have properly fulfilled such
other means of satisfaction and discharge as is specified, as contemplated by
Section 2.01, to be applicable to the Securities of such series;
(2) the Company or a Subsidiary Guarantor has paid or caused to be paid all other sums
payable by them hereunder with respect to the Securities of such series; and
(3) the Company has delivered to the Trustee an Officers Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with, together with an Opinion of Counsel to
the same effect.
(b) Unless this Section 8.01(b) is specified as not being applicable to Securities of a series
as contemplated by Section 2.01, the Company may, at its option, terminate certain of its and the
Subsidiary Guarantors respective obligations under this Indenture (covenant defeasance) with
respect to the Securities of a series if:
(1) the Company or a Subsidiary Guarantor has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for and dedicated solely to the benefit
of the Holders of Securities of such series, (i) money in the currency in which payment of
the Securities of such series is to be made in an amount, or (ii) Government Obligations
with respect to such series, maturing as to principal and interest at such times and in such
amounts as will ensure the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a combination thereof, that is
sufficient, in the opinion (in the case of clauses (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the principal of and premium (if any) and interest
on all Securities of such series on each date that such principal, premium (if any) or
interest is due and payable and (at the Stated Maturity thereof or upon redemption as
provided in Section 8.01(e)) to pay all other sums payable by it hereunder;
provided
that
the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds
of such Government Obligations to the payment of said principal, premium (if any) and
interest with respect to the Securities of such series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion of Counsel from a
nationally recognized counsel acceptable to the Trustee or a tax ruling to the effect that
the Holders will not recognize income, gain or loss for U.S. Federal income tax
40
purposes as a result of the Companys exercise of its option under this Section 8.01(b)
and will be subject to U.S. Federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such option had not been exercised;
(5) the Company and the Subsidiary Guarantors have complied with any additional
conditions specified pursuant to Section 2.01 to be applicable to the discharge of
Securities of such series pursuant to this Section 8.01; and
(6) such deposit and discharge shall not cause the Trustee to have a conflicting
interest as defined in TIA § 310(b).
In such event, this Indenture shall cease to be of further effect (except as set forth in this
paragraph), and the Trustee, on demand of the Company, shall execute proper instruments
acknowledging satisfaction and discharge under this Indenture. However, the Companys and the
Subsidiary Guarantors respective obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02,
7.07, 7.08 and 8.04, the Trustees and Paying Agents obligations in Section 8.03 and the rights,
powers, protections and privileges accorded the Trustee under Article VII shall survive until all
Securities of such series are no longer outstanding. Thereafter, only the Companys obligations in
Section 7.07 and the Trustees and Paying Agents obligations in Section 8.03 shall survive with
respect to Securities of such series.
After such irrevocable deposit made pursuant to this Section 8.01(b) and satisfaction of the
other conditions set forth herein, the Trustee upon request shall acknowledge in writing the
discharge of the Companys and the Subsidiary Guarantors obligations under this Indenture with
respect to the Securities of such series except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal of or premium (if any) or
interest on the Securities, the Government Obligations shall be payable as to principal or interest
on or before such payment date in such amounts as will provide the necessary money. Government
Obligations shall not be callable at the issuers option.
(c) If the Company and the Subsidiary Guarantors have previously complied or is concurrently
complying with Section 8.01(b) (other than any additional conditions specified pursuant to
Section 2.01 that are expressly applicable only to covenant defeasance) with respect to Securities
of a series, then, unless this Section 8.01(c) is specified as not being applicable to Securities
of such series as contemplated by Section 2.01, the Company may elect that its and the Subsidiary
Guarantors respective obligations to make payments with respect to Securities of such series be
discharged (legal defeasance), if:
(1) no Default or Event of Default under clauses (5) and (6) of Section 6.01 hereof
shall have occurred at any time during the period ending on the 91st day after the date of
deposit contemplated by Section 8.01(b) (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of such series as
contemplated by Section 2.01, the Company has delivered to the Trustee an Opinion of
41
Counsel from a nationally recognized counsel acceptable to the Trustee to the effect
referred to in Section 8.01(b)(4) with respect to such legal defeasance, which opinion is
based on (i) a private ruling of the Internal Revenue Service addressed to the Company, (ii)
a published ruling of the Internal Revenue Service pertaining to a comparable form of
transaction or (iii) a change in the applicable federal income tax law (including
regulations) after the date of this Indenture;
(3) the Company and the Subsidiary Guarantors have complied with any other conditions
specified pursuant to Section 2.01 to be applicable to the legal defeasance of Securities of
such series pursuant to this Section 8.01(c); and
(4) the Company has delivered to the Trustee a Company Request requesting such legal
defeasance of the Securities of such series and an Officers Certificate stating that all
conditions precedent with respect to such legal defeasance of the Securities of such series
have been complied with, together with an Opinion of Counsel to the same effect.
In such event, the Company and the Subsidiary Guarantors will be discharged from its
obligations under this Indenture and the Securities of such series to pay principal of, premium (if
any) and interest on and any Additional Amounts with respect to Securities of such series, the
Companys and the Subsidiary Guarantors respective obligations under Sections 4.01, 4.02 and 10.1
shall terminate with respect to such Securities, and the entire indebtedness of the Company
evidenced by such Securities and of the Subsidiary Guarantors evidenced by the related Guarantee
shall be deemed paid and discharged.
(d) If and to the extent additional or alternative means of satisfaction, discharge or
defeasance of Securities of a series are specified to be applicable to such series as contemplated
by Section 2.01, each of the Company and the Subsidiary Guarantors may terminate any or all of its
obligations under this Indenture with respect to Securities of a series and any or all of its
obligations under the Securities of such series if it fulfills such other means of satisfaction and
discharge as may be so specified, as contemplated by Section 2.01, to be applicable to the
Securities of such series.
(e) If Securities of any series subject to subsections (a), (b), (c) or (d) of this Section
8.01 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking fund provisions, the terms of
the applicable trust arrangement shall provide for such redemption, and the Company shall make such
arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.
SECTION 8.02
Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money
or Government Obligations deposited with it pursuant to Section 8.01 hereof. It shall apply the
deposited money and the money from Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of, premium (if
42
any) and interest on and any Additional Amounts with respect to the Securities of the series
with respect to which the deposit was made.
SECTION 8.03
Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company or any Subsidiary Guarantor
any excess money or Government Obligations (or proceeds therefrom) held by them at any time upon
the written request of the Company.
Subject to the requirements of any applicable abandoned property laws, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by them for the payment
of principal, premium (if any), interest or any Additional Amounts that remain unclaimed for two
years after the date upon which such payment shall have become due. After payment to the Company,
Holders entitled to the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability of the Trustee and
the Paying Agent with respect to such money shall cease.
SECTION 8.04
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or Government Obligations
deposited with respect to Securities of any series in accordance with Section 8.01 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 the Subsidiary Guarantors under this Indenture with respect to the Securities of such series
and under the Securities of such series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is permitted
to apply all such money or Government Obligations in accordance with Section 8.01;
provided,
however,
that if the Company or any Subsidiary Guarantor has made any payment of principal of,
premium (if any) or interest on or any Additional Amounts with respect to any Securities because of
the reinstatement of its obligations, the Company or such Subsidiary Guarantor, 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 Obligations held by the Trustee or the Paying Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01
Without Consent of Holders.
The Company, the Subsidiary Guarantors and the Trustee may amend or supplement this Indenture
or the Securities or waive any provision hereof or thereof without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
43
(3) to provide for uncertificated Securities in addition to or in place of certificated
Securities, or to provide for the issuance of bearer Securities (with or without coupons);
(4) to provide any security for, or to add any guarantees of or additional obligors on,
any series of Securities or the related Guarantees, if any;
(5) to comply with any requirement in order to effect or maintain the qualification of
this Indenture under the TIA;
(6) to add to the covenants of the Company or any Subsidiary Guarantor for the benefit
of the Holders of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series), or to surrender any right or power
herein conferred upon the Company or any Subsidiary Guarantor;
(7) to add any additional Events of Default with respect to all or any series of the
Securities (and, if any Event of Default is applicable to less than all series of
Securities, specifying the series to which such Event of Default is applicable);
(8) to change or eliminate any of the provisions of this Indenture;
provided
that any
such change or elimination shall become effective only when there is no outstanding Security
of any series created prior to the execution of such amendment or supplemental indenture
that is adversely affected in any material respect by such change in or elimination of such
provision;
provided, further,
that any change made solely to conform the provisions of this
Indenture to the description of any Security in a prospectus supplement pursuant to which
such Securities were offered and sold will not be deemed to adversely affect any Security of
that series in any material respect;
(9) to establish the form or terms of Securities of any series as permitted by Section
2.01;
(10) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Section 8.01;
provided, however
, that any such action shall not adversely affect
the interest of the Holders of Securities of such series or any other series of Securities
in any material respect; or
(11) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 7.08.
Upon the request of the Company, accompanied by a Board Resolution, and upon receipt by the
Trustee of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06,
join with the Company and the Subsidiary Guarantors in the execution of any
44
supplemental indenture authorized or permitted by the terms of this Indenture and make any
further appropriate agreements and stipulations that may be therein contained.
Notwithstanding anything to the contrary in this Section 9.01, it shall not be necessary for
any Subsidiary Guarantor to join with the Company and the Trustee in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture unless such
supplemental indenture applies to a series of Securities entitled to the benefit of a Guarantee by
such Subsidiary Guarantor.
SECTION 9.02
With Consent of Holders.
Except as provided below in this Section 9.02, the Company, the Subsidiary Guarantors and the
Trustee may amend or supplement this Indenture with the written consent (including consents
obtained in connection with a tender offer or exchange offer for Securities of any one or more
series or all series or a solicitation of consents in respect of Securities of any one or more
series or all series,
provided
that in each case such offer or solicitation is made to all Holders
of then outstanding Securities of each such series (but the terms of such offer or solicitation may
vary from series to series)) of the Holders of at least a majority in principal amount of the then
outstanding Securities of each series affected by such amendment or supplement.
Upon the request of the Company, accompanied by a Board Resolution, and upon the filing with
the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee
of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06, join with
the Company and the Subsidiary Guarantors in the execution of such amendment or supplemental
indenture.
It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
The Holders of a majority in principal amount of the then outstanding Securities of one or
more series may waive compliance in a particular instance by the Company or any Subsidiary
Guarantor with any provision of this Indenture with respect to Securities of such series (including
waivers obtained in connection with a tender offer or exchange offer for Securities of such series
or a solicitation of consents in respect of Securities of such series,
provided
that in each case
such offer or solicitation is made to all Holders of then outstanding Securities of such series
(but the terms of such offer or solicitation may vary from series to series)).
However, without the consent of each Holder affected, an amendment, supplement or waiver under
this Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must consent to an amendment,
supplement or waiver;
(2) reduce the rate of or change the time for payment of interest, including default
interest, on any Security;
45
(3) reduce the principal of, any premium on or any mandatory sinking fund payment with
respect to, or change the Stated Maturity of, any Security or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(4) reduce the premium, if any, payable upon the redemption of any Security or change
the time at which any Security may or shall be redeemed;
(5) change any obligation of the Company or any Subsidiary Guarantor to pay Additional
Amounts with respect to any Security;
(6) change the coin or currency or currencies (including composite currencies) in which
any Security or any premium, interest or Additional Amounts with respect thereto are
payable;
(7) impair the right to institute suit for the enforcement of any payment of principal
of, premium (if any) or interest on or any Additional Amounts with respect to any Security
pursuant to Sections 6.07 and 6.08, except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of Securities necessary to
waive compliance with certain provisions of this Indenture pursuant to Section 6.04 or 6.07
or make any change in this sentence of Section 9.02;
(9) waive a continuing Default or Event of Default in the payment of principal of,
premium (if any) or interest on or Additional Amounts with respect to the Securities; or
(10) except as provided in Section 10.04, release any Subsidiary Guarantor or modify
the related Guarantee in any manner materially adverse to the Holders.
A supplemental indenture that changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
The right of any Holder to participate in any consent required or sought pursuant to any
provision of this Indenture (and the obligation of the Company or any Subsidiary Guarantor to
obtain any such consent otherwise required from such Holder) may be subject to the requirement that
such Holder shall have been the Holder of record of any Securities with respect to which such
consent is required or sought as of a date identified by the Company or such Subsidiary Guarantor
in a notice furnished to Holders in accordance with the terms of this Indenture.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders of each Security affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail
46
such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such amendment, supplement or waiver.
Notwithstanding anything to the contrary in this Section 9.02, it shall not be necessary for
any Subsidiary Guarantor to join with the Company and the Trustee in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture unless such
supplemental indenture applies to a series of Securities entitled to the benefit of a Guarantee by
such Subsidiary Guarantor.
SECTION 9.03
Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities shall comply in form and
substance with the TIA as then in effect.
SECTION 9.04
Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holders Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to his or her Security or portion of a Security if the Trustee receives written notice of
revocation before a date and time therefor identified by the Company or any Subsidiary Guarantor in
a notice furnished to such Holder in accordance with the terms of this Indenture or, if no such
date and time shall be identified, the date the amendment, supplement or waiver becomes effective.
An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter
binds every Holder.
The Company or any Subsidiary Guarantor may, but shall not be obligated to, fix a record date
(which need not comply with TIA § 316(c)) for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver or to take any other action under this Indenture.
If a record date is fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be Holders after such
record date. No consent shall be valid or effective for more than 90 days after such record date
unless consents from Holders of the principal amount of Securities required hereunder for such
amendment or waiver to be effective shall have also been given and not revoked within such 90-day
period.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it is of the type described in any of clauses (1) through (9) of Section 9.02 hereof. In such
case, the amendment, supplement or waiver shall bind each Holder who has consented to it and every
subsequent Holder that evidences the same debt as the consenting Holders Security.
SECTION 9.05
Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an outstanding Security, the Company may
require the Holder of the Security to deliver it to the Trustee. The Trustee may
47
place an appropriate notation on the Security at the request of the Company regarding the
changed terms and return it to the Holder. Alternatively, if the Company so determines, 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 or supplement.
Securities of any series authenticated and delivered after the execution of any amendment or
supplement may, and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such amendment or supplement.
SECTION 9.06
Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized pursuant to this Article 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 or refusing to sign
such amendment or supplement, the Trustee shall be entitled to receive, and, shall be fully
protected in relying upon in good faith, an Officers Certificate and an Opinion of Counsel
provided at the expense of the Company or a Subsidiary Guarantor as conclusive evidence that such
amendment or supplement is authorized or permitted by this Indenture, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company in accordance with its terms.
ARTICLE X
GUARANTEE
SECTION 10.01
Guarantee
.
(a) Notwithstanding any provision of this Article X to the contrary, the provisions of this
Article X relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to
the benefit of, the Securities of any series designated, pursuant to Section 2.01, as entitled to
the benefits of the related Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and
absolutely guarantees (each, a Guarantee) to the Holders and to the Trustee the due and punctual
payment of the principal of, and premium, if any, and interest on the Securities and all other
amounts due and payable under this Indenture and the Securities by the Company, when and as such
principal, premium, if any, and interest shall become due and payable, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise, according to the
terms of the Securities and this Indenture, subject to the limitations set forth in Section 10.03.
(c) Failing payment when due of any amount guaranteed pursuant to the related Guarantee, for
whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay
the same immediately. Each of the Guarantees hereunder is intended to be a general, unsecured,
senior obligation of the related Subsidiary Guarantor and will rank pari passu in right of payment
with all Debt of such Subsidiary Guarantor that is not, by its
48
terms, expressly subordinated in right of payment to such Guarantee. Each of the Subsidiary
Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute,
irrespective of the validity, regularity or enforceability of the Securities, its Guarantee, the
Guarantee of any other Subsidiary Guarantor or this Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Securities with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company or any Subsidiary Guarantor, or
any action to enforce the same or any other circumstances which might otherwise constitute a legal
or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors
hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or
interest on the Securities of such series, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee
on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions
set forth in this Indenture, directly against such Subsidiary Guarantor to enforce such Guarantee
without first proceeding against the Company or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article X shall be as
aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited
by any occurrence or condition whatsoever, including, without limitation, (i) any compromise,
settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in,
any of the obligations and liabilities of the Company or any of the Subsidiary Guarantors contained
in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of
the liability of the Company, any of the Subsidiary Guarantors or any of their estates in
bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present
or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the
decision of any court, (iii) the assertion or exercise by the Company, any of the Subsidiary
Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their
delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the
purported assignment of any property as security for the Securities, including all or any part of
the rights of the Company or any of the Subsidiary Guarantors under this Indenture, (v) the
extension of the time for payment by the Company or any of the Subsidiary Guarantors of any
payments or other sums or any part thereof owing or payable under any of the terms and provisions
of the Securities or this Indenture or of the time for performance by the Company or any of the
Subsidiary Guarantors of any other obligations under or arising out of any such terms and
provisions or the extension or the renewal of any thereof, (vi) the modification or amendment
(whether material or otherwise) of any duty, agreement or obligation of the Company or any of the
Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding
affecting, the Company or any of the Subsidiary Guarantors or any of their respective assets, or
the disaffirmance of the Securities, the Guarantees or this Indenture in any such proceeding,
(viii) the release or discharge of the Company or any of the Subsidiary Guarantors from the
performance or observance of any agreement, covenant, term or condition contained in any of such
instruments by operation of law, (ix) the unenforceability of the Securities of such series, the
related Guarantees or this Indenture or (x) any other circumstances (other than payment in full or
discharge of all amounts guaranteed pursuant to the
49
related Guarantees) which might otherwise constitute a legal or equitable discharge of a
surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of
payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the
Company or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any
agreement, instrument or document evidencing its Guarantee may be transferred and that the benefit
of its obligations hereunder shall extend to each holder of any agreement, instrument or document
evidencing its Guarantee without notice to it and (iii) covenants that its Guarantee will not be
discharged except by complete performance of such Guarantee. Each of the Subsidiary Guarantors
further agrees that if at any time all or any part of any payment theretofore applied by any Person
to its Guarantee is, or must be, rescinded or returned for any reason whatsoever, including,
without limitation, the insolvency, bankruptcy or reorganization of the Company or any of the
Subsidiary Guarantors, such Guarantee shall, to the extent that such payment is or must be
rescinded or returned, be deemed to have continued in existence notwithstanding such application,
and such Guarantee shall continue to be effective or be reinstated, as the case may be, as though
such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the
Trustee against the Company in respect of any amounts paid by such Subsidiary Guarantor pursuant to
the provisions of this Indenture;
provided, however
, that such Subsidiary Guarantor shall not be
entitled to enforce or to receive any payments arising out of, or based upon, such right of
subrogation until all of the Securities of such series and the related Guarantees shall have been
paid in full or discharged.
SECTION 10.02
Execution and Delivery of Guarantees
.
To further evidence its Guarantee set forth in Section 10.01, each of the Subsidiary
Guarantors hereby agrees that a notation relating to such Guarantee, substantially in the form
attached hereto as Annex A, shall be endorsed on each Security of the series entitled to the
benefits of such Guarantee authenticated and delivered by the Trustee, which notation of Guarantee
shall be executed by either manual or facsimile signature of an Officer of such Subsidiary
Guarantor. Each of the Subsidiary Guarantors hereby agrees that its Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Security
a notation relating to such Guarantee. If any Officer of such Subsidiary Guarantor whose signature
is on this Indenture or a notation of Guarantee no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, the Guarantee of such Security shall be
valid nevertheless. The delivery of any Security of a series entitled to the benefits of a
Guarantee under this Article X by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf of each Subsidiary
Guarantor.
SECTION 10.03
Limitation on Liability of the Subsidiary Guarantors
.
Each Subsidiary Guarantor and by its acceptance hereof each Holder of a Security of a series
entitled to the benefits of a Guarantee under this Article X hereby confirms that it is the
intention of all such parties that the guarantee by such Subsidiary Guarantor pursuant to its
Guarantee not constitute a fraudulent transfer or conveyance for purposes of any federal or state
law. To effectuate the foregoing intention, the Holders of a Security entitled to the benefits of
50
such Guarantee and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each
Subsidiary Guarantor under its Guarantee shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and 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 Guarantee, result in the obligations
of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law.
SECTION 10.04
Release of Subsidiary Guarantors from Guarantee
.
(a) Notwithstanding any other provisions of this Indenture, the Guarantee of any Subsidiary
Guarantor may be released upon the terms and subject to the conditions set forth in this Section
10.04. Provided that no Default shall have occurred and shall be continuing under this Indenture,
any Guarantee incurred by a Subsidiary Guarantor pursuant to this Article X shall be
unconditionally released and discharged (i) automatically upon (A) any sale, exchange or transfer,
whether by way of merger or otherwise, to any Person that is not an Affiliate of the Company, of
all of the Companys direct or indirect equity interests in such Subsidiary Guarantor (
provided
such sale, exchange or transfer is not prohibited by this Indenture) or (B) the merger of such
Subsidiary Guarantor into the Company or any other Subsidiary Guarantor or the liquidation and
dissolution of such Subsidiary Guarantor (in each case to the extent not prohibited by this
Indenture) or (ii) following delivery of a written notice of such release or discharge by the
Company to the Trustee, upon the release or discharge of all guarantees by such Subsidiary
Guarantor of any Debt of the Company other than obligations arising under this Indenture and any
Securities issued hereunder, except a discharge or release by or as a result of payment under such
guarantees.
(b) The Trustee shall deliver an appropriate instrument evidencing any release of a Subsidiary
Guarantor from its Guarantee upon receipt of a written request of the Company accompanied by an
Officers Certificate and an Opinion of Counsel that the Subsidiary Guarantor is entitled to such
release in accordance with the provisions of this Indenture. If the Subsidiary Guarantor is not so
released it shall remain liable for the full amount of principal of (and premium, if any, on) and
interest on the Securities entitled to the benefits of such Guarantee as provided in this
Indenture, subject to the limitations of Section 10.03.
51
SECTION 10.05
Contribution
. In order to provide for just and equitable contribution among the Subsidiary
Guarantors, the Subsidiary Guarantors hereby agree, inter se, that in the event any payment or
distribution is made by any Subsidiary Guarantor (a Funding Guarantor) under its Guarantee, such
Funding Guarantor shall be entitled to a contribution from each other Subsidiary Guarantor (as
applicable) in a pro rata amount based on the net assets of each Subsidiary Guarantor (including
the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Companys obligations with respect to the Securities of a series entitled to the
benefits of a Guarantee under this Article X or any other Subsidiary Guarantors obligations with
respect to its Guarantee of such series of Securities.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01
Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
operation of TIA § 318(c), the imposed duties shall control.
SECTION 11.02
Notices.
Any notice or communication by the Company, any Subsidiary Guarantor or the Trustee to the
other is duly given if in writing and delivered in person or mailed by first-class mail (registered
or certified, return receipt requested), telex, facsimile or overnight air courier guaranteeing
next day delivery, to the others address:
If to the Company or any Subsidiary Guarantor:
Carrizo Oil & Gas, Inc.
1000 Louisiana, Suite 1500
Houston, Texas 77002
Attn: S.P. Johnson IV
Telephone: (713) 328-1000
Facsimile: (713) 358-6440
If to the Trustee:
Wells Fargo Bank, National Association
Corporate Trust Services
1445 Ross Avenue 2nd Floor
Dallas, Texas 75202-2812
Attn: Patrick Giordano
Telephone: (214) 740-1573
Facsimile: (214) 777-4086
The Company, any Subsidiary Guarantor or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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All 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 answered back, if telexed; when receipt acknowledged, if by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class mail, postage prepaid,
to the Holders address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it, except in the case of
notice to the Trustee, it is duly given only when received.
If the Company or a Subsidiary Guarantor mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation notices to the Trustee, the
Company or a Subsidiary Guarantor by Holders, shall be in writing, except as otherwise set forth
herein.
In case by reason of the suspension of regular mail service, or by reason of any other cause,
it shall be impossible to mail any notice required by this Indenture, then such method of
notification as shall be made with the approval of the Trustee shall constitute a sufficient
mailing of such notice.
SECTION 11.03
Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Securities. The Company, the Subsidiary Guarantors, the
Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
SECTION 11.04
Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or a Subsidiary Guarantor to the Trustee to
take any action under this Indenture, the Company or such Subsidiary Guarantor shall, if requested
by the Trustee, furnish to the Trustee at the expense of the Company or such Subsidiary Guarantor,
as the case may be:
(1) an Officers Certificate (which shall include the statements set forth in
Section 11.05) stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
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SECTION 11.05
Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:
(1) a statement that the Person 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 Person, he or she has made such
examination or investigation as is necessary to enable him or her 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 Person, such condition or
covenant has been complied with.
SECTION 11.06
Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or the Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 11.07
Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 11.08
No Recourse Against Others.
A director, officer, employee, stockholder, partner or other owner of the Company, a
Subsidiary Guarantor or the Trustee, as such, shall not have any liability for any obligations of
the Company under the Securities, for the obligations of any Subsidiary Guarantor under any
Guarantee, or for any obligations of the Company, any Subsidiary Guarantor or the Trustee under
this Indenture or for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such liability. The waiver
and release shall be part of the consideration for the issue of Securities.
SECTION 11.09
Governing Law.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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SECTION 11.10
No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company, any Subsidiary Guarantor or any other Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 11.11
Successors.
All agreements of the Company and each of the Subsidiary Guarantors in this Indenture and the
Securities shall bind their successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 11.12
Severability.
In case any provision in this Indenture or in the Securities or in any Guarantee shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall, to the fullest extent permitted by applicable law, not in any way be affected or
impaired thereby.
SECTION 11.13
Counterpart 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.
SECTION 11.14
Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions hereof.
55
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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CARRIZO OIL & GAS, INC.
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By:
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/s/ Paul F. Boling
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Name: Paul F. Boling
Title: Vice President, Chief Financial Officer,
Secretary and Treasurer
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CCBM,
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INC.
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By:
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/s/ Paul F. Boling
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Name: Paul F. Boling
Title: Vice President
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CLLR,
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INC.
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By:
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/s/ Paul F. Boling
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Name: Paul F. Boling
Title: Vice President
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HONDO
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PIPELINE, INC.
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By:
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/s/ Paul F. Boling
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Name: Paul F. Boling
Title: Vice President
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Patrick T. Giordano
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Name: Patrick T. Giordano
Title: Vice President
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56
ANNEX A
NOTATION OF GUARANTEE
Each of the Subsidiary Guarantors (which term includes any successor Person under the
Indenture) has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities and all other amounts due and
payable under the Indenture and the Securities by the Company.
The obligations of the Subsidiary Guarantors to the Holders of Securities and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth in Article X of the Indenture
and reference is hereby made to the Indenture for the precise terms of the Guarantee.
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[NAME OF SUBSIDIARY GUARANTOR]
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By:
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Name:
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Title:
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A-1
Exhibit 4.2
EXECUTION COPY
FIRST SUPPLEMENTAL INDENTURE
between
CARRIZO OIL & GAS, INC.
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
4.375% Convertible Senior Notes due 2028
May 28, 2008
TABLE OF CONTENTS
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ARTICLE ONE THE NOTES
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2
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SECTION 101 Designation of Notes; Establishment of Form
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2
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SECTION 102 Amount
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2
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SECTION 103 Interest
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2
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SECTION 104 Denominations
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3
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SECTION 105 Place of Payment
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3
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SECTION 106 Redemption
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3
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SECTION 107 Conversion
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3
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SECTION 108 Maturity
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3
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SECTION 109 No Defeasance
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3
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SECTION 110 Repurchase
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4
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SECTION 111 Other Terms of Notes
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4
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ARTICLE TWO AMENDMENTS TO THE INDENTURE
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4
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SECTION 201 Definitions
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4
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SECTION 202 Mutilated, Destroyed, Lost and Stolen Securities
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9
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SECTION 203 Payment of Interest; Interest Rights Preserved
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9
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SECTION 204 Limitation on Mergers and Consolidations
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10
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SECTION 205 Supplemental Indentures Without Consent of Holders
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10
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SECTION 206 Supplemental Indenture with Consent of Holder
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10
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SECTION 207 Maintenance of Office or Agency
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10
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SECTION 208 Redemption
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11
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SECTION 209 Possible Future Guarantee
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16
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SECTION 210 Conversion, Repurchase
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17
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SECTION 211 Amendment to Events of Default
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SECTION 212 Calculations
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ARTICLE THREE MISCELLANEOUS PROVISIONS
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37
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SECTION 301 Integral Part
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37
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SECTION 302 General Definitions
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SECTION 303 Adoption, Ratification and Confirmation
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SECTION 304 Counterparts
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SECTION 305 Governing Law
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i
CARRIZO OIL & GAS, INC.
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of May 28, 2008 (the First Supplemental
Indenture), between Carrizo Oil & Gas, Inc., a Texas corporation (the Company), and Wells Fargo
Bank, National Association (the Trustee).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated
as of May 28, 2008, providing for the issuance from time to time of one or more series of the
Companys Securities;
WHEREAS, Sections 2.01 and 9.01(9) of the Indenture provides that the Company and the Trustee
may from time to time enter into one or more indentures supplemental thereto to establish the form
or terms of Securities of a new series;
WHEREAS, Section 9.01(6) of the Indenture permit the execution of supplemental indentures
without the consent of any Holders to add to the covenants of the Company for the benefit of, and
to add any additional Events of Default with respect to, all or any series of Securities;
WHEREAS, Section 9.01(8) of the Indenture permits the execution of supplemental indentures
without the consent of any Holders to change or eliminate any of the provisions of the Indenture;
provided
that such change or elimination does not adversely affect any outstanding Security of any
series created prior to the execution of such supplemental indenture;
WHEREAS, the Company desires to issue 4.375% Convertible Senior Notes due 2028 (the Notes),
a new series of Securities the issuance of which was authorized by or pursuant to resolution of the
Board of Directors of the Company;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and by this First
Supplemental Indenture to supplement and amend the Indenture insofar as it will apply only to Notes
in certain respects; and
WHEREAS, all things necessary have been done to make the Notes, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of
the Company, and to make this First Supplemental Indenture a valid agreement of the Company, in
accordance with their and its terms.
NOW, THEREFORE:
In consideration of the premises provided for herein, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of all Holders of the Notes as follows:
ARTICLE ONE
THE NOTES
SECTION 101
Designation of Notes; Establishment of Form.
There shall be a series of Securities designated 4.375% Convertible Senior Notes due 2028 of
the Company (the Notes), the form of which shall be substantially as set forth in Annex A hereto,
which is incorporated into and shall be deemed a part of this First Supplemental Indenture, with
such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture, and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the officers of the Company
executing such Notes, as evidenced by their execution of the Notes.
All of the Notes will initially be issued in permanent global form, substantially in the
respective form set forth in Annex A (the Global Securities). Each Global Security shall
represent such of the Notes as shall be specified therein and shall provide that it shall represent
the aggregate amount of Outstanding Notes from time to time endorsed thereon and that the aggregate
amount of Outstanding Notes represented thereby may from time to time be reduced to reflect
exchanges and redemptions. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of Outstanding Notes represented thereby shall be made by the
Trustee in accordance with written instructions or such other written form of instructions as is
customary for the Depositary, from the Depositary or its nominee on behalf of any Person having the
beneficial interest in the Global Security.
The Company initially appoints The Depository Trust Company to act as Depositary with respect
to the Global Securities.
The Company initially appoints the Trustee to act as Paying Agent and Conversion Agent with
respect to the Notes.
SECTION 102
Amount.
The Notes may be issued in unlimited aggregate principal amount. The Trustee shall
authenticate and deliver Notes for original issue in an aggregate Principal Amount of up to
$373,750,000 upon Company Order without any further action by the Company. Upon Company Request,
the Trustee shall authenticate and deliver additional Notes,
provided
that such additional Notes
are fungible with the Notes then outstanding for U.S. Federal income taxation purposes.
SECTION 103
Interest.
The Notes shall bear interest at the rate set forth under the caption Interest in the Notes.
Interest on the Notes shall be payable to the persons in whose name the Notes are registered at
the close of business on the Regular Record Date for such interest payment. Interest on the Notes
shall accrue on the Notes from the date specified in the Notes. The Interest Payment Dates on
which interest on the Notes shall be payable are June 1 and December 1, commencing on
2
December 1, 2008. The Regular Record Dates for the interest payable on the Notes on any
Interest Payment Date shall be May 15 or November 15, as the case may be, immediately preceding
such Interest Payment Date.
SECTION 104
Denominations.
The Notes shall be in fully registered form without coupons in denominations of $1,000 of
Principal Amount or any integral multiple thereof.
SECTION 105
Place of Payment.
The Place of Payment for the Notes and the place or places where the principal of and interest
on the Notes shall be payable, the Notes may be surrendered for registration of transfer, the Notes
may be surrendered for exchange, repurchase, redemption or conversion and where notices may be
given to the Company in respect of the Notes is at the office or agency of the Trustee in Dallas,
Texas;
provided
that payment of interest may be made at the option of the Company by check mailed
to the address of the person entitled thereto as such address shall appear in the Security Register
(as defined in the Indenture) or by wire transfer of immediately available funds to the accounts in
the United States specified by the Holder of such Notes.
SECTION 106
Redemption.
There shall be no sinking fund for the retirement of the Notes.
The Company, at its option, may redeem the Notes in accordance with the provisions of and at
the Redemption Prices set forth under the captions Optional Redemption and Notice of Redemption
in the Notes and in accordance with the provisions of the Indenture, including, without limitation,
Article Three.
The last sentence of Section 3.02 of the Indenture, paragraph (8) of Section 3.04 of the
Indenture and the clause , unless the redemption of notice thereof is subject to one or more
conditions as specified in the notice, in Section 3.05 of the Indenture shall not apply to the
Notes.
SECTION 107
Conversion.
The Notes shall be convertible in accordance with the provisions and at the Conversion Rate
set forth under the caption Conversion in the Notes and in accordance with the provisions of the
Indenture, including, without limitation, Article Twelve.
SECTION 108
Maturity.
The date on which the principal of the Notes is payable, unless accelerated pursuant to the
Indenture, shall be June 1, 2028.
SECTION 109
No Defeasance.
Sections 8.01(a)(1)(B), 8.01(b) and 8.01(c) of the Indenture shall not apply to the Notes.
3
SECTION 110
Repurchase.
(a) The Notes shall be repurchased by the Company in accordance with the provisions and at the
Repurchase Prices set forth under the caption Repurchase by the Company at the Option of the
Holder in the Notes and in accordance with the provisions of the Indenture, including, without
limitation, Article Thirteen.
(b) The Company, at the option of the Holders thereof, shall purchase the Notes at the
Fundamental Change Purchase Price set forth under the caption Purchase of Securities at Option of
Holder Upon a Fundamental Change in the Notes and in accordance with the provisions of the
Indenture, including, without limitation, Sections 3.12 through 3.18. For the avoidance of doubt,
such a purchase of the Notes shall not be deemed a redemption under the provisions of Sections 3.01
to 3.11 of the Indenture.
SECTION 111
Other Terms of Notes.
Without limiting the foregoing provisions of this Article One, the terms of the Notes shall be
as set forth in the form of the Notes set forth in Annex A hereto and as provided in the Indenture.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
The amendments contained herein shall apply to the Notes only and not to any other series of
Security issued under the Indenture and any covenants provided herein are expressly being included
solely for the benefit of the Notes. These amendments shall be effective for so long as there
remain any Notes Outstanding.
SECTION 201
Definitions.
Section 1.01 of the Indenture is amended by inserting or restating, as the case may be, in
their appropriate alphabetical position, the following definitions:
Additional Interest has the meaning specified in Section 6.01.
Additional Shares has the meaning specified in Section 12.02.
Bid Solicitation Agent means the Trustee or, if so appointed, a Company-appointed agent that
performs calculations as set forth in the form of the Notes attached hereto as Annex A.
Capital Stock or capital stock of any Person means any and all shares, interests,
partnership interests, participations, rights or other equivalents (however designated) of such
Persons equity interest (however designated) issued by that Person.
Common Stock means any stock of any class of the Company (including, without limitation, the
Companys common stock of a par value of $0.01 per share) which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or
4
involuntary liquidation, dissolution or winding up of the Company and which is not subject to
redemption by the Company.
Company Notice shall have the meaning specified in Section 13.02.
Conversion Agent shall be the agent specified in Section 101.
Conversion Date has the meaning specified in Section 12.03.
Conversion Obligation has the meaning specified in Section 12.01.
Conversion Period means (i) with respect to any Note submitted for conversion on or after
(A) the 25
th
scheduled Trading Day prior to a Redemption Date fixed with respect to the
Note or (B) the Stated Maturity of the Note, the 20 consecutive VWAP Trading Day period beginning
on, and including, the 22
nd
scheduled Trading Day prior to such Redemption Date or the
Stated Maturity of the Note, as applicable, and (ii) in all other cases, the 20 consecutive VWAP
Trading Day period beginning on, and including, the third VWAP Trading Day after the Conversion
Date.
Conversion Price means $1,000 divided by the then applicable Conversion Rate.
Conversion Proceeds has the meaning specified in Section 12.01.
Conversion Rate means 9.9936, subject to adjustment pursuant to Sections 12.02 and 12.07
hereof.
Current Market Price has the meaning specified in Section 12.07(f).
Daily Conversion Value Amount means, for each VWAP Trading Day of the Conversion Period, the
amount equal to 1/20
th
of the product of (a) the VWA Price on such VWAP Trading Day, and
(b) the Conversion Rate in effect on such VWAP Trading Day. For purposes of the foregoing, the
Daily Conversion Value Amount of Reference Property will be determined by reference to (i) in the
case of Reference Property or part of Reference Property that is traded on a United States national
securities exchange or automated quotation system, a market price equivalent to the Last Reported
Sale Price of such security, (ii) in the case of any other property other than cash, the value
thereof as determined in good faith by the Board of Directors and (iii) in the case of cash, 100%
of the amount thereof.
Daily Settlement Amount for each of the VWAP Trading Days of the relevant Conversion Period
means the sum of:
(A) an amount of cash equal to the lesser of (1) $50.00 and (2) the Daily Conversion Value
Amount relating to such VWAP Trading Day, and
(B) if such Daily Conversion Value Amount exceeds $50.00, the Daily Share Amount for such VWAP
Trading Day.
5
Daily Share Amount means, for any VWAP Trading Day, a number of shares of Common Stock equal
to (A) the difference between the Daily Conversion Value Amount and $50.00, divided by (B) the VWA
Price of the Common Stock for such VWAP Trading Day.
Designated Institution has the meaning specified in Section 12.03.
Effective Date means the date on which a Fundamental Change occurs or becomes effective.
Expiration Date has the meaning specified in Section 12.07(e).
Exchange Act means the Securities Exchange Act of 1934, as amended, or any successor
statute.
Ex-dividend Date means (i) with respect to any issuance or distribution, the first date on
which the shares of Common Stock trade on the applicable exchange or in the applicable market,
regular way, without the right to receive such issuance or distribution, (ii) with respect to any
subdivision or combination of shares of Common Stock, the first date on which the shares of Common
Stock trade regular way on such exchange or in such market after the time at which such subdivision
or combination thereof become effective, and (iii) with respect to any tender offer, the first date
on which the shares of Common Stock trade regular way on such exchange or market after the
Expiration Date of such offer.
Fundamental Change has the meaning specified in Section 3.12.
Fundamental Change Purchase Date has the meaning specified in Section 3.12.
Fundamental Change Purchase Notice has the meaning specified in Section 3.12.
Fundamental Change Purchase Price has the meaning specified in Section 3.12.
Last Reported Sale Price on any date means the closing sale price per share of our Common
Stock (or if no closing sale price is reported, the average of the bid and asked prices or, if more
than one in either case, the average of the average bid and the average asked prices) on that date
as reported by the Nasdaq Global Select Market or, if shares of Common Stock are not listed on the
Nasdaq Global Select Market, as reported in composite transactions for the principal securities
exchange on which the shares of Common Stock are traded or, if the shares of Common Stock are not
traded on such an exchange, the market value of a share of Common Stock as determined by a
nationally recognized independent investment banking firm retained for this purpose by the Company.
The Last Reported Sale Price of other securities that constitute Reference Property and that are
traded on a national securities exchange or an automated quotation system shall be determined in a
manner substantially equivalent to the foregoing as determined in good faith by the Company.
Notes has the meaning specified in Section 101.
Outstanding, when used with respect to the Notes, means, as of the date of determination,
all Notes theretofore authenticated and delivered under this Indenture, except:
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(i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Notes for whose payment, repurchase or redemption money or shares of Common Stock in the
necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Notes;
provided
that, if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Notes which have been cancelled pursuant to Section 2.13 or in exchange for or in lieu
of which other Notes have been authenticated and delivered pursuant to this Indenture, other than
any such Notes in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a
bona fide
purchaser in whose hands such Notes are
valid obligations of the Company; and
(iv) Notes converted for cash and shares of Common Stock, if any, pursuant to Article Twelve;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes which the Trustee
knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgees right so to act with respect to such Notes and that the pledgee is not the Company or any
other obligor upon the Notes or any Affiliate of the Company or of such other obligor.
Payment Default has the meaning specified in Section 6.01.
Principal Amount of a Note means the Principal Amount as set forth on the face of the Note.
Publicly Traded Debt Securities has the meaning specified in Section 4.08.
Reference Property has the meaning specified in Section 12.11.
Reorganization Event has the meaning specified in Section 12.11.
Repurchase Date has the meaning specified in Section 13.01.
Repurchase Notice has the meaning specified in Section 13.01.
Repurchase Price has the meaning specified in Section 13.01.
7
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture, including
Notes.
Securities Act means the Securities Act of 1933, as amended, or any successor statute.
Share Price means the average of the Last Reported Sale Prices of the shares of Common Stock
over a 10 Trading Day period ending on the Trading Day immediately preceding the Effective Date;
provided
,
however
, that if holders of shares of Common Stock receive only cash consideration for
their shares of Common Stock in connection with a Fundamental Change, then the Share Price will be
the cash amount paid per share of Common Stock.
Spin-off has the meaning specified in Section 12.07(c).
Spin-off Valuation Period has the meaning specified in Section 12.07(c).
Termination of Trading has the meaning specified in Section 3.12.
Trading Day means a day during which trading in securities generally occurs on the Nasdaq
Global Select Market or, if the shares of Common Stock are not listed on the Nasdaq Global Select
Market, on the principal other national or regional securities exchange on which the shares of
Common Stock are then listed or, if the shares of Common Stock are not listed on a national or
regional securities exchange, on the principal other market on which the shares of Common Stock are
then traded.
Trading Price has the meaning specified in the form of the Notes attached hereto as Annex A.
Trading Price Condition has the meaning specified in the form of the Notes attached hereto
as Annex A.
Voting Stock means any class or classes of Capital Stock pursuant to which the holders
thereof under ordinary circumstances have the power to vote in the election of the board of
directors, managers or trustees of any Person (or other Persons performing similar functions),
irrespective of whether or not, at the time, Capital Stock of any other class or classes shall
have, or might have, voting power by reason of the happening of any contingency.
VWA Price means, for each of the 20 consecutive VWAP Trading Days during the Conversion
Period, the per share volume-weighted average price of the shares of Common Stock as displayed
under the heading Bloomberg VWAP on Bloomberg page CRZO <equity> AQR (or any equivalent
successor page, or, if no such page is available, any other equivalent publication) in respect of
the period from the scheduled open of trading on the principal securities exchange or trading
market for shares of the Common Stock to the scheduled close of trading on such exchange or market
on such VWAP Trading Day or, if such volume-weighted average price is unavailable, the market value
of one share of Common Stock on such VWAP Trading Day using a volume-weighted method as determined
by a nationally recognized independent investment banking firm retained for this purpose by the
Company.
8
VWAP Market Disruption Event means (1) a failure by the principal securities exchange or
trading market on which the shares of Common Stock are listed or admitted to trading to open for
trading during its regular trading session or (2) the occurrence or existence prior to 1:00 p.m. on
any scheduled Trading Day for shares of Common Stock for an aggregate one half-hour period of any
suspension or limitation imposed on trading (by reason of movements in price exceeding limits
permitted by the securities exchange or trading market or otherwise) in the shares of Common Stock
or in any options contracts or futures contracts relating to the shares of Common Stock.
VWAP Trading Day means a day during which (1) trading in shares of Common Stock generally
occurs on the principal securities exchange or trading market on which the shares of Common Stock
are listed or admitted for trading and (2) there is no VWAP Market Disruption Event. If the shares
of Common Stock are not so listed or traded, then VWAP Trading Day means a Business Day.
SECTION 202
Mutilated, Destroyed, Lost and Stolen Securities.
The Indenture shall be amended by replacing the second sentence of Section 2.09 with the
following sentence:
If any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, or is about to be redeemed or purchased by the
Company upon a Fundamental Change pursuant to Article Three or purchased by the
Company on a Repurchase Date pursuant to Article Thirteen, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
SECTION 203
Payment of Interest; Interest Rights Preserved.
The Indenture shall be amended by inserting the following paragraph before the final paragraph
in Section 2.14:
In the case of any Note or portion thereof which is surrendered for conversion
after the close of business on the Regular Record Date immediately preceding any
Interest Payment Date and prior to the opening of business on such next succeeding
Interest Payment Date, interest whose Stated Maturity is on such Interest Payment
Date shall be payable on such Interest Payment Date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Note is registered at the close of business on
such Regular Record Date. Notes so surrendered for conversion must be accompanied
by a payment of an amount equal to the amount of such interest;
provided,
that no
such payment need be made (1) if the Company has specified a Fundamental Change
Purchase Date following a Fundamental Change that is after the Regular Record Date
and on or prior to the next succeeding Interest Payment Date, (2) only to the extent
of overdue interest, if any overdue interest exists at the date of conversion with
respect to a Note, (3) if the Note is surrendered for conversion after the Regular
Record Date immediately preceding the Stated Maturity of the Note, or (4) if the
9
Note is surrendered in connection with a call for redemption with a Redemption
Date that is after the Regular Record Date and on or prior to the next succeeding
Interest Payment Date. Except as otherwise provided in the immediately preceding
sentence, in the case of any Note which is converted, interest whose Stated Maturity
is after the date of conversion of such Note shall not be payable.
SECTION 204
Limitation on Mergers and Consolidations.
Section 5.01 shall be amended by inserting the following paragraph immediately following
paragraph (1) therein and renumbering paragraphs (2) and (3) therein to (3) and (4) therein,
respectively:
(2) the Successor (if any) in the case of a consolidation or merger as to which the
Company is a constituent party or a sale, transfer or disposition of all or substantially
all the assets by the Company is organized under the laws of the United States of America
or any State thereof (including the District of Columbia);
SECTION 205
Supplemental Indentures Without Consent of Holders.
Section 9.01 of the Indenture shall be amended by inserting the following paragraph after
paragraph (11):
(12) to make provision with respect to the conversion rights, if any, of
Holders of Notes pursuant to and in accordance with the requirements of
Article Twelve hereof.
SECTION 206
Supplemental Indenture with Consent of Holder.
The Indenture shall be amended by inserting , or adversely affect the right to convert any
Note as provided in Article Twelve, or reduce the amount payable upon redemption or repurchase of
any Note (including the Fundamental Change Purchase Price of any Note) at the end of
Section 9.02(3).
SECTION 207
Maintenance of Office or Agency.
The first paragraph of Section 4.02 of the Indenture is amended by changing the first
paragraph thereof to read in its entirety as follows:
The Company will maintain in each Place of Payment for the Notes an office or
agency (which may be an office of the Trustee, the Registrar or the Paying Agent)
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange, where Notes may be surrendered
for conversion and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. Unless otherwise designated by the
Company by written notice to the Trustee, such office or agency shall be the office
of the Trustee at 1445 Ross Avenue, 2
nd
Floor, MAC T5303-02J, Dallas,
Texas 75202. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or
10
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, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and demands.
SECTION 208
Redemption.
Article Three shall be amended by inserting the following Sections 3.12 through 3.18:
Section 3.12
Purchase of Securities at Option of the Holder Upon Fundamental Change
(a) If at any time that Notes remain Outstanding there shall occur a
Fundamental Change, the Notes shall be purchased by the Company at the option of the
Holders thereof as of a date selected by the Company that is not less than 20
Business Days and not more than 35 Business Days (or a longer period if required by
applicable law) after the Company mails the written notice of the Fundamental Change
referred to below (the Fundamental Change Purchase Date) at a purchase price equal
to the Principal Amount plus accrued and unpaid interest up to but excluding the
Fundamental Change Purchase Date (the Fundamental Change Purchase Price), subject
to satisfaction by or on behalf of any Holder of the requirements set forth in
subsection (c) of this Section 3.12;
provided
that if the Fundamental Change
Purchase Date is after a Regular Record Date and on or prior to the corresponding
Interest Payment Date, the interest will be paid on the Interest Payment Date to the
holder of record on such Regular Record Date and will not be included in the
Fundamental Change Purchase Price.
A Fundamental Change shall be deemed to have occurred if any of the following
occurs after the Issue Date:
(i) any person or group (as such terms are defined below) (A) becomes the
beneficial owner (as defined below), directly or indirectly, of shares of Voting
Stock of the Company representing 50% or more of the total voting power of all
outstanding classes of Voting Stock of the Company or (B) has the power, directly or
indirectly, to elect a majority of the members of the board of directors of the
Company;
(ii) the Company consolidates with, or merges with or into, another person or
the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of the consolidated assets of the Company, or any person
consolidates with, or merges with or into, the Company, or the Company completes a
binding share exchange with another person;
(iii) the shares of Common Stock or equivalent Capital Stock in respect of
shares of Common Stock or equivalent Capital Stock into which the Notes are
convertible pursuant to the provisions of Article Twelve are not listed for trading
11
on the Nasdaq Global Select Market or the New York Stock Exchange, or any
successor to any such market, that may exist from time to time, for a period of
20 consecutive Trading Days (a Termination of Trading); or
(iv) the Company is liquidated or dissolved or holders of shares of Common
Stock approve any plan or proposal for the Companys liquidation or dissolution.
Notwithstanding the foregoing, a transaction described in clause (ii) above
will not constitute a Fundamental Change (and a change in or acquisition of
beneficial ownership or power to elect a majority of the Board of Directors,
Termination of Trading or liquidation or dissolution, in each case arising out of
such a transaction, will not constitute a Fundamental Change) if (A) the persons
that beneficially own Voting Stock in the Company immediately prior to the relevant
transaction beneficially own shares with a majority of the total voting power of all
outstanding Voting Stock of the surviving or transferee person or the parent entity
thereof, (B) the shares of Common Stock or equivalent Capital Stock in respect of
shares of Common Stock (in the event the Company is a surviving entity in the
transaction) or of such successor or transferee person or parent entity thereof are
listed for trading on the Nasdaq Global Select Market or the New York Stock
Exchange, or any successor to any such market that may exist from time to time,
immediately following such transaction, and (C) as a result of such transaction, the
Notes are or become convertible, upon the satisfaction of the conditions for
conversion and actual conversion in accordance with the terms of the Notes, into
such shares of Common Stock or equivalent capital stock of the Company or such
successor or transferee person or parent entity thereof.
Also, notwithstanding the foregoing, it will not constitute a Fundamental
Change if at least 90% of the consideration for the shares of Common Stock
(excluding cash payments for fractional shares) in the transaction or transactions
constituting the Fundamental Change consists of common stock or equivalent Capital
Stock traded on the Nasdaq Global Select Market or the New York Stock Exchange, or
any successor to any such market, or which will be so traded when issued or
exchanged in connection with the Fundamental Change, and as a result of such
transaction or transactions the Notes become convertible, upon the satisfaction of
the conditions for conversion and actual conversion in accordance with the terms of
the Notes, into such common stock or equivalent Capital Stock.
For the purpose of the definition of Fundamental Change, (i) person and
group have the meanings given such terms under Section 13(d) and 14(d) of the
Exchange Act or any successor provision to either of the foregoing, and the term
group includes any group acting for the purpose of acquiring, holding or disposing
of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any
successor provision thereto), (ii) a beneficial owner shall be determined in
accordance with Rule 13d-3 under the Exchange Act, as in effect on May 28, 2008, and
(iii) the terms beneficially owned and beneficially own shall have meanings
correlative to that of beneficial owner.
12
(b) Within 15 Business Days after the occurrence of a Fundamental Change
described in subsection (a)(ii) or (a)(iv) of Section 3.12 and, in the case of a
Fundamental Change described in subsection (a)(i) or (a)(iii) of Section 3.12, no
later than the later of (x) one Business Day following the Effective Date or (y) two
Business Days following the date on which officers of the Company first learned of
such Fundamental Change following the Effective Date of such Fundamental Change, the
Company shall mail a written notice of the Fundamental Change to the Trustee and to
each Holder. The notice shall include the form of a Fundamental Change Purchase
Notice to be completed by the Holder and shall state:
(1) the date of such Fundamental Change and, briefly, the events causing such
Fundamental Change;
(2) the date by which the Fundamental Change Purchase Notice pursuant to this
Section 3.12 must be given;
(3) the Fundamental Change Purchase Date;
(4) the Fundamental Change Purchase Price;
(5) briefly, the conversion rights of the Notes;
(6) the name and address of each Paying Agent and Conversion Agent;
(7) the Conversion Rate and any adjustments thereto (including the adjustment
for any Additional Shares);
(8) that the Notes as to which a Fundamental Change Purchase Notice has been
given may be converted pursuant to Article Twelve only to the extent that the
Fundamental Change Purchase Notice has been withdrawn in accordance with the terms
of this Indenture;
(9) the procedures that the Holder must follow to exercise rights under this
Section 3.12;
(10) the procedures for withdrawing a Fundamental Change Purchase Notice,
including a form of notice of withdrawal; and
(11) that the Holder must satisfy the requirements set forth in the Notes in
order to convert the Notes.
If any of the Notes is in the form of a Global Security, then the Company shall
modify such notice to the extent necessary to accord with the procedures of the
Depositary applicable to the repurchase of Global Securities.
(c) A Holder may exercise its rights specified in subsection (a) of this
Section 3.12 upon delivery of a written notice (which shall be in substantially the
13
form included as an attachment to the Security and which may be delivered by
letter, overnight courier, hand delivery, facsimile transmission or in any other
written form) of the exercise of such rights (a Fundamental Change Purchase
Notice) to any Paying Agent at any time prior to the close of business on the
Business Day next preceding the Fundamental Change Purchase Date.
The delivery of such Note to any Paying Agent (together with all necessary
endorsements) at the office of such Paying Agent shall be a condition to the receipt
by the Holder of the Fundamental Change Purchase Price therefor.
The Company shall purchase from the Holder thereof, pursuant to this Section
3.12, a portion of a Note if the Principal Amount of such portion is $1,000 or an
integral multiple of $1,000. Provisions of this Indenture that apply to the
purchase of all of a Note pursuant to Sections 3.12 through 3.18 also apply to the
purchase of such portion of such Note.
Notwithstanding anything herein to the contrary, any Holder delivering to a
Paying Agent the Fundamental Change Purchase Notice contemplated by this subsection
(c) shall have the right to withdraw such Fundamental Change Purchase Notice in
whole or in a portion thereof that is a Principal Amount of $1,000 or in an integral
multiple thereof at any time prior to the close of business on the Business Day next
preceding the Fundamental Change Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.13.
A Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Purchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of Global
Securities, any Fundamental Change Purchase Notice may be delivered or withdrawn and
such Notes may be surrendered or delivered for purchase in accordance with the
applicable procedures of the Depositary as in effect from time to time.
Section 3.13
Effect of Fundamental Change Purchase Notice
Upon receipt by any Paying Agent of the Fundamental Change Purchase Notice
specified in Section 3.12(c), the Holder of the Note in respect of which such
Fundamental Change Purchase Notice was given shall (unless such Fundamental Change
Purchase Notice is withdrawn as specified below) thereafter be entitled to receive
the Fundamental Change Purchase Price with respect to such Note. Such Fundamental
Change Purchase Price shall be paid to such Holder promptly following the later of
(a) the Fundamental Change Purchase Date with respect to such Note (provided the
conditions in Section 3.12(c) have been satisfied) and (b) the time of delivery of
such Note to a Paying Agent by the Holder thereof in the manner required by Section
3.12(c). Notes in respect of which a Fundamental Change Purchase Notice has been
given by the Holder
14
thereof may not be converted into shares of Common Stock on or after the date
of the delivery of such Fundamental Change Purchase Notice unless such Fundamental
Change Purchase Notice has first been validly withdrawn.
A Fundamental Change Purchase Notice may be withdrawn by means of a written
notice (which may be delivered by letter, overnight courier, hand delivery,
facsimile transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance with the
Depositarys customary procedures) of withdrawal delivered by the Holder to a Paying
Agent at any time prior to the close of business on the Business Day immediately
preceding the Fundamental Change Purchase Date, specifying the Principal Amount of
the Security or portion thereof (which must be a Principal Amount of $1,000 or an
integral multiple of $1,000 in excess thereof) with respect to which such notice of
withdrawal is being submitted.
Section 3.14
Deposit of Fundamental Change Purchase Price
On or before 11:00 a.m. New York City time on the Fundamental Change Purchase
Date, the Company shall deposit with the Trustee or with a Paying Agent (other than
the Company or an Affiliate of the Company) an amount of money (in immediately
available funds if deposited on such Fundamental Change Purchase Date) sufficient to
pay the aggregate Fundamental Change Purchase Price of all the Notes or portions
thereof that are to be purchased as of such Fundamental Change Purchase Date. The
manner in which the deposit required by this Section 3.14 is made by the Company
shall be at the option of the Company,
provided
that such deposit shall be made in a
manner such that the Trustee or a Paying Agent shall have immediately available
funds on the Fundamental Change Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof, money sufficient
to pay the Fundamental Change Purchase Price of any Note for which a Fundamental
Change Purchase Notice has been tendered and not withdrawn in accordance with this
Indenture then, on the Fundamental Change Purchase Date, such Note will cease to be
Outstanding and the rights of the Holder in respect thereof shall terminate (other
than the right to receive the Fundamental Change Purchase Price as aforesaid). The
Company shall publicly announce the Principal Amount of Notes purchased as a result
of such Fundamental Change on or as soon as practicable after the Fundamental Change
Purchase Date.
Section 3.15
Securities Purchased In Part
Any Note that is to be purchased only in part shall be surrendered at the
office of a Paying Agent and promptly after the Fundamental Change Purchase Date the
Company shall execute and the Trustee shall authenticate and deliver to the Holder
of such Note, without service charge, a new Note or Notes, of such authorized
denomination or denominations as may be requested by such Holder,
15
in aggregate Principal Amount equal to, and in exchange for, the portion of the
Principal Amount of the Note so surrendered that is not purchased.
Section 3.16
Compliance With Securities Laws Upon Purchase of Securities
In connection with any offer to purchase or purchase of Notes under Section
3.12, the Company shall (a) comply with Rule 13e-4 under the Exchange Act (or any
successor to such Rule), if applicable, and (b) file the related Schedule TO (or any
successor or similar schedule, form or report) if required under the Exchange Act.
Section 3.17
Repayment to the Company
To the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 3.14 exceeds the aggregate Fundamental Change Purchase Price
together with interest, if any, thereon of the Notes or portions thereof that the
Company is obligated to purchase, then promptly after the Fundamental Change
Purchase Date the Trustee or a Paying Agent, as the case may be, shall return any
such excess to the Company.
Section 3.18
No Purchase on Fundamental Change if Event of Default
There shall be no purchase of any Notes pursuant to this Article Three if there
has occurred (prior to, on or after, as the case may be, the giving, by the Holders
of such Notes, of the required Fundamental Change Purchase Notice) and is continuing
an Event of Default (other than a default in the payment of the Fundamental Change
Purchase Price with respect to such Notes). The Paying Agent will promptly return to
the respective Holders thereof any Notes (x) with respect to which a Fundamental
Change Purchase Notice has been withdrawn in compliance with this Indenture, or (y)
held by it during the continuance of an Event of Default (other than a default in
the payment of the Fundamental Change Purchase Price with respect to such Notes) in
which case, upon such return, the Fundamental Change Purchase Notice with respect
thereto shall be deemed to have been withdrawn.
SECTION 209
Possible Future Guarantee.
Article Four is amended by adding the following section:
Section 4.08.
Obligation to Guarantee
.
If at any time the Company issues debt securities that are publicly traded
(Publicly Traded Debt Securities), and any Subsidiary Guarantor provides a
Guarantee with respect to such Publicly Traded Debt Securities, then the Company
will cause such Subsidiary Guarantor to guarantee the Notes as provided in Article
Ten. In addition to the circumstances under which a Guarantee may be released that
are described in Article Ten, any such Guarantee may be released if such Subsidiary
Guarantor no longer guarantees the Publicly
16
Traded Debt Securities (and, notwithstanding the provisions of Section 10.04(a)
of the Indenture, such Guarantee may not be released until no other Securities
issued under the Indenture are guaranteed by such Subsidiary Guarantor; provided,
that the foregoing shall not restrict the release of a Guarantee of one or more
series of Securities if the release of each such Guarantee occurs on a substantially
simultaneous basis). For purposes of the foregoing, publicly traded includes
securities that have been designated as eligible for trading in the PORTAL market in
accordance with the applicable rules of the PORTAL market or issued and sold in a
public offering registered under the Securities Act.
SECTION 210
Conversion, Repurchase.
The Indenture is amended by adding the following Articles Twelve and Thirteen to the
Indenture:
ARTICLE TWELVE
CONVERSION
Section 12.01
Conversion Privilege
The Notes shall be convertible in accordance with their terms and in accordance
with this Article. The obligation of the Company to convert the Notes is referred
to as the Conversion Obligation.
A Holder of a Note may convert the Principal Amount of such Note (or any
portion thereof equal to a Principal Amount of $1,000 or any integral multiple of a
Principal Amount of $1,000 in excess thereof) into, for each $1,000 Principal Amount
of Notes converted, cash and shares of Common Stock, if any, equal to the sum of the
Daily Settlement Amounts (such sum, the Conversion Proceeds) for each of the 20
VWAP Trading Days during the relevant Conversion Period, at any time that one or
more of the conditions set forth under the caption Conversion in the Notes are
satisfied;
provided
,
however
, that the Company will pay cash in lieu of fractional
shares based upon the VWA Price on the last VWAP Trading Day in the Conversion
Period as described in Section 12.04.
If an event requiring an adjustment pursuant to Section 12.07 hereof occurs
during the Conversion Period, the Company will make proportional adjustments to the
Daily Settlement Amount for each VWAP Trading Day during the portion of the
Conversion Period preceding the effective date of the adjustment event.
Notes shall be convertible only until the close of business on the Business Day
prior to the Stated Maturity. In case a Note or portion thereof is called for
redemption pursuant to Article Three, such conversion right shall terminate at the
close of business on the Business Day immediately prior to the earlier of (a) June
1, 2028 and (b) the date on which such Note (or portion thereof) is redeemed (unless
the Company shall default in making the redemption payment when due,
17
in which case the conversion right shall terminate at the close of business on
the date such default is cured and such Note is redeemed). Provisions of this
Indenture that apply to conversion of all of a Note also apply to conversion of a
portion of a Note.
A Note in respect of which a Holder has delivered a Repurchase Notice or
Fundamental Change Purchase Notice exercising the option of such Holder to require
the Company to purchase such Note may be converted only if such notice of exercise
is withdrawn in accordance with the terms of the Indenture. A Holder of Notes
entitled to receive any shares of Common Stock upon conversion of Notes is not
entitled to any rights of a Holder of shares of Common Stock until such Holder has
converted its Notes to shares of Common Stock, and only to the extent such Notes are
deemed to have been converted into shares of Common Stock pursuant to this Article
Twelve.
Section 12.02
Conversion Rate
(a) If the Effective Date (or anticipated Effective Date in the case of a
transaction described in subsection (a)(ii) of Section 3.12) of a Fundamental Change
occurs on or prior to June 1, 2013, and a Holder elects to convert Notes during the
period commencing on such Effective Date (or during the period commencing 15 days
prior to the anticipated Effective Date in the case of a transaction described in
subsection (a)(ii) of Section 3.12) and ending on the later of (A) the day before
the Fundamental Change Purchase Date with respect to such Fundamental Change and
(B) 30 days following the Effective Date (but in any event prior to the close of
business on the Business Day prior to the Stated Maturity), the Conversion Rate
applicable to each $1,000 Principal Amount of Notes so converted shall be increased
by an additional number of shares of the Common Stock (the Additional Shares) as
specified in subsection (b) below;
provided
that, in the case of a transaction
described in subsection (a)(ii) of Section 3.12, if a Holder converts its Notes
prior to the anticipated Effective Date, and such Fundamental Change does not occur
as anticipated, such Holder will not be entitled to an increased Conversion Rate as
described in subsection (b) of this Section 12.02. The Company shall give written
notice (the Fundamental Change Notice) to Holders and the Trustee of any such
Fundamental Change and the anticipated Effective Date, if applicable, and issue a
press release providing the same information no later than 15 days prior to the
anticipated Effective Date of a Fundamental Change described in subsection (a)(ii)
or (a)(iv) of Section 3.12 and, in the case of a Fundamental Change described in
subsection (a)(i) or (a)(iii) of Section 3.12, no later than the later of (x) one
business day following the Effective Date or (y) two business days following the
date on which officers of the Company first learned of such Fundamental Change
following the Effective Date of such Fundamental Change. If a Fundamental Change
does not occur as anticipated, the Company shall issue a press release and notify
Holders who have elected to convert their Notes promptly after the Company
determines not to increase the Conversion Rate, and each such Holder may elect to
withdraw any election to convert by a written notice of withdrawal delivered to the
Conversion
18
Agent within ten Business Days after the Company announces that the Fundamental
Change will not occur as anticipated.
(b) The number of Additional Shares by which the Conversion Rate will be
increased shall be determined by reference to the table attached as Schedule A
hereto, based on the Effective Date and the Share Price;
provided
,
however
, that if
the actual Share Price is between two Share Prices in the table or the relevant
Effective Date is between two Effective Dates in the table, the number of Additional
Shares shall be determined by a straight-line interpolation between the number of
Additional Shares set forth for the next higher and next lower Share Prices and the
two Effective Dates, as applicable, based on a 365-day year; and
provided further
,
however
, that (1) if the Share Price is in excess of $190.00 per share, subject to
adjustment as described in subsection (c) of this Section 12.02, no Additional
Shares will be added to the Conversion Rate, and (2) if the Share Price is less than
$67.84 per share, subject to adjustment as described in subsection (c) of this
Section 12.02, no Additional Shares will be added to the Conversion Rate.
Notwithstanding the foregoing, in no event will the Conversion Rate exceed 14.7406
per $1,000 Principal Amount of Notes, subject to adjustment in the same manner as
the Conversion Rate as set forth in Section 12.07.
(c) The Share Prices set forth in the first row of each table in Schedule A
shall be adjusted as of any date on which the Conversion Rate is adjusted. The
adjusted Share Prices shall equal the Share Prices applicable immediately prior to
such adjustment, multiplied by a fraction, the numerator of which is the Conversion
Rate in effect immediately prior to the Share Price adjustment and the denominator
of which is the Conversion Rate as so adjusted. The number of Additional Shares
within the table in Schedule A hereto shall be adjusted in the same manner as the
Conversion Rate as set forth in Section 12.07.
Section 12.03
Conversion Procedure
To convert a Note, a Holder must satisfy the requirements set forth under the
caption Conversion in the Note. The date on which the Holder satisfies all of
those requirements is the Conversion Date. The Company shall deliver the
Conversion Proceeds to the Holder through a Conversion Agent on the third Trading
Day following the final VWAP Trading Day of the Conversion Period; provided, that if
the Holder converts in connection with a Reorganization Event, the Company will
deliver the Conversion Proceeds to the Holder through a Conversion Agent on the
later to occur of (i) the third Trading Day immediately following the Effective Date
of such event and (ii) the third Trading Day immediately following the last Trading
Day of the Conversion Period; provided, further, that if the Reference Property
consists entirely of cash or property other than publicly traded securities, the
Company will deliver the Conversion Proceeds to the Holders through a Conversion
Agent no later than the third Business Day after the determination of the value of
the Conversion Proceeds, if such date occurs after the third Trading Day immediately
following the Effective Date of
19
such event. Anything herein to the contrary notwithstanding, in the case of
Global Securities, conversion notices may be delivered and such Notes may be
surrendered for conversion in accordance with the applicable procedures of the
Depositary as in effect from time to time. The Person in whose name any shares of
Common Stock are registered shall be deemed to be a shareholder of record on the
Conversion Date;
provided
,
however
, that no surrender of a Note on any date when the
stock transfer books of the Company shall be closed shall be effective to constitute
the Person or Persons entitled to receive shares of Common Stock upon such
conversion as the record holder or holders of such shares of Common Stock on such
date, but such surrender shall be effective to constitute the Person or Persons
entitled to receive such shares of Common Stock as the record holder or holders
thereof for all purposes at the close of business on the next succeeding day on
which such stock transfer books are open. Upon conversion of a Note, such Person
shall no longer be a Holder of such Note.
No payment or adjustment will be made for dividends on, or other distributions
with respect to, any shares of Common Stock except as provided in this Article
Twelve. On conversion of a Note, accrued interest with respect to the converted Note
shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be
paid in full to the Holder thereof through delivery of the Conversion Proceeds in
exchange for the Note being converted pursuant to the provisions hereof.
Upon surrender of a Note that is converted in part, the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder, a new Note equal in
Principal Amount to the Principal Amount of the unconverted portion of the Note
surrendered.
Notes or portions thereof surrendered for conversion after the close of
business on any Regular Record Date immediately preceding any Interest Payment Date
and prior to the opening of business on such Interest Payment Date shall (unless
such Notes or portions thereof have been called for redemption on a Redemption Date
within such period) be accompanied by payment to the Company or its order, in New
York Clearing House funds or other funds acceptable to the Company, of an amount
equal to the interest payable on such Interest Payment Date on the Principal Amount
of Notes or portions thereof being surrendered for conversion, and such interest
payable on such Interest Payment Date shall be payable to the registered Holder
notwithstanding the conversion of such Note;
provided
,
however
, that no such payment
need be made (1) if the Company has specified a Fundamental Change Purchase Date
following a Fundamental Change that is after the Regular Record Date and on or prior
to the next succeeding Interest Payment Date, (2) only to the extent of overdue
interest, if any overdue interest exists at the date of conversion with respect to a
Note, (3) if the Note is surrendered for conversion after the Regular Record Date
immediately preceding the Stated Maturity of the Note, or (4) if the Note is
surrendered in connection with a call for redemption with a Redemption Date that is
after the Regular Record Date and on or prior to the next succeeding Interest
20
Payment Date. No other payments or adjustments for interest, or any dividends
with respect to any shares of Common Stock, will be made upon conversion.
When a Holder surrenders Notes for conversion, the Company may, at its
election, direct the Conversion Agent to surrender such Notes to a financial
institution designated by the Company (the Designated Institution) for exchange in
lieu of conversion. In order to accept any Notes surrendered for conversion, the
Designated Institution must agree to deliver, in exchange for such Notes, cash and
the number of shares of Common Stock, if any, due upon conversion based upon the
Conversion Rate in full satisfaction of the Conversion Obligation, as determined
pursuant to Sections 12.01 and 12.02. If the Company makes an exchange election, it
will, by the close of business on the Trading Day immediately preceding the start of
the Conversion Period, notify the Holder surrendering the Notes for conversion that
it has directed the Designated Institution to make an exchange in lieu of
conversion. If the Designated Institution accepts any such Notes, it will deliver
the cash, and if any, the number of shares of Common Stock due upon conversion to
the Conversion Agent, and the Conversion Agent will deliver such cash and shares of
Common Stock to the converting Holder. Any Notes exchanged by the Designated
Institution will remain Outstanding. If the Designated Institution does not accept
the Notes for exchange or agrees to accept any Notes for exchange but does not
timely deliver the related cash and shares of Common Stock, the Company will, as
promptly as practical thereafter (but in any event, no later than the fourth Trading
Day immediately following the last Trading Day of the relevant Conversion Period)
deliver the cash and shares of Common Stock due upon conversion, based upon the
Conversion Rate in full satisfaction of the Conversion Obligation, as determined
pursuant to Sections 12.01 and 12.02, as if the Company had not made the election.
The Companys designation of a Designated Institution to which the Notes may be
submitted for exchange does not require the Designated Institution to accept any
Notes.
Section 12.04
Fractional Shares
The Company will not issue fractional shares of Common Stock upon conversion of
Notes. In lieu thereof, the Company will pay an amount in cash based upon the VWA
Price of the shares of Common Stock on the last VWAP Trading Day in the Conversion
Period.
Section 12.05
Taxes on Conversion
If a Holder converts a Note, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of any shares of Common Stock upon
such conversion. However, the Holder shall pay any such tax which is due because the
Holder requests the shares to be issued in a name other than the Holders name. The
Conversion Agent may refuse to deliver the shares of Common Stock being issued in a
name other than the Holders name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due
21
because the shares are to be issued in a name other than the Holders name.
Nothing herein shall preclude any tax withholding required by law or regulation.
Section 12.06
Company to Provide Shares of Common Stock
The Company shall, prior to the Issue Date, and from time to time as may be
necessary, reserve a sufficient number shares of Common Stock to permit the delivery
of shares of Common Stock upon conversion of all Notes. All shares of Common Stock
delivered upon conversion of the Notes, if any, shall be duly authorized, validly
issued, fully paid and nonassessable and shall be free from preemptive rights and
free of any lien or adverse claim.
The Company will comply promptly with all federal and state securities laws
regulating the registration of the offer and delivery of shares of Common Stock to a
converting Holder upon conversion of Notes, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange,
over-the-counter market or such other market on which the shares of Common Stock are
then listed or quoted.
Section 12.07
Adjustment of Conversion Rate
The Conversion Rate shall be adjusted from time to time by the Company as
follows:
(a) In case the Company shall (i) pay a dividend on its shares of Common Stock
in shares of Common Stock, (ii) make a distribution on its shares of Common Stock in
shares of Common Stock, (iii) subdivide its outstanding shares of Common Stock into
a greater number of shares, or (iv) combine its outstanding shares of Common Stock
into a smaller number of shares, the Conversion Rate in effect immediately prior
thereto shall be adjusted based on the following formula:
where
|
|
|
|
|
CR
0
|
|
=
|
|
the Conversion Rate in effect at the close of business
immediately prior to the Ex-dividend Date
|
|
|
|
|
|
CR
1
|
|
=
|
|
the Conversion Rate in effect on the Ex-dividend Date
|
|
|
|
|
|
OS
0
|
|
=
|
|
the number of shares of Common Stock outstanding at the close of
business immediately prior to the Ex-dividend Date
|
22
|
|
|
|
|
OS
1
|
|
=
|
|
the number of shares of Common Stock outstanding at the close of
business immediately prior to the Ex-dividend Date, assuming,
for this purpose only, the completion of the event immediately
prior to the Ex-dividend Date
|
An adjustment made pursuant to this subsection (a) shall become effective
immediately prior to the opening of business on the Ex-dividend Date.
(b) In case the Company shall issue rights or warrants to all or substantially
all holders of shares of Common Stock entitling them (for a period expiring not more
than 60 days after such record date) to subscribe for or purchase shares of Common
Stock at a price per share less than the Current Market Price per share of Common
Stock (as determined in accordance with subsection (f) of this Section 12.07 on the
Ex-dividend Date for the determination of shareholders entitled to receive such
rights or warrants), the Conversion Rate in effect immediately prior thereto shall
be adjusted based on the following formula:
CR
1
= CR
0
´
OS
0
+ X
OS
0
+ Y
where,
|
|
|
|
|
CR
0
|
|
=
|
|
the Conversion Rate in effect at the close of business
immediately prior to the Ex-dividend Date
|
|
|
|
|
|
CR
1
|
|
=
|
|
the Conversion Rate in effect on the Ex-dividend Date
|
|
|
|
|
|
OS
0
|
|
=
|
|
the number of shares of Common Stock outstanding at the close of
business immediately prior to the Ex-dividend Date
|
|
|
|
|
|
X
|
|
=
|
|
the total number of shares of Common Stock issuable pursuant to
such rights
|
|
|
|
|
|
Y
|
|
=
|
|
the number of shares of Common Stock equal to the aggregate
price payable to exercise such rights divided by the average of
the Last Reported Sale Prices of the shares of Common Stock for
the 10 consecutive Trading Days ending on the Business Day
immediately preceding the Ex-dividend Date
|
Any such adjustment made pursuant to this subsection (b) shall be made
successively whenever any such rights or warrants are issued, and shall become
effective immediately prior to the opening of business on the Ex-dividend Date. If
23
at the end of the period during which such rights or warrants are exercisable
not all rights or warrants shall have been exercised, the adjusted Conversion Rate
shall be immediately readjusted to what it would have been based upon the number of
additional shares of Common Stock actually issued.
(c) In case the Company shall distribute to all or substantially all of the
holders of Common Stock any shares of capital stock, evidences of indebtedness or
other assets (but excluding any distribution in connection with any liquidation,
dissolution or winding up and excluding all-cash distributions or any distributions
of any shares of Common Stock, rights or warrants referred to in Sections 12.07(a)
or 12.07(b)), then in each such case the Conversion Rate shall be adjusted based on
the following formula:
CR
1
= CR
0
x
SP
0
SP
0
FMV
where,
|
|
|
|
|
CR
0
|
|
=
|
|
the Conversion Rate in effect at the close of business
immediately prior to the Ex-dividend Date
|
|
|
|
|
|
CR
1
|
|
=
|
|
the Conversion Rate in effect on the Ex-dividend Date
|
|
|
|
|
|
SP
0
|
|
=
|
|
the Current Market Price
|
|
|
|
|
|
FMV
|
|
=
|
|
the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive evidence of such fair
market value and which shall be evidenced by an Officers
Certificate delivered to the Trustee) of the shares of capital
stock, evidences of indebtedness or other assets distributed
with respect to each outstanding share of Common Stock on the
Ex-dividend Date for such distribution
|
With respect to an adjustment pursuant to this subsection (c), where there has
been a payment of a dividend or other distribution on the shares of Common Stock of
shares of capital stock of, or similar equity interests in, a subsidiary or other
business unit of the Company (a Spin-off), the Conversion Rate will be adjusted
based on the following formula:
CR
1
= CR
0
x
FMV
0
+ MP
0
MP
0
where,
24
|
|
|
|
|
CR
0
|
|
=
|
|
the Conversion Rate in effect at the close of
business immediately prior to the Ex-dividend Date
|
|
|
|
|
|
CR
1
|
|
=
|
|
the Conversion Rate in effect on the Ex-dividend Date
|
|
|
|
|
|
FMV
0
|
|
=
|
|
the average of the sale prices of the capital stock
or similar equity interest distributed to holders of
shares of Common Stock applicable to one share of
Common Stock over the 10 Trading Days commencing on
and including the effective date of the Spin-off
(the Spin-off Valuation Period);
provided
that, in
the case of any VWAP Trading Days within a
Conversion Period that fall within such ten Trading
Day period, in respect of any such VWAP Trading Day,
the Spin-Off Valuation Period shall be deemed to
include only those Trading Days falling on or
between the effective date of such Spin-off and such
VWAP Trading Day.
|
|
|
|
|
|
MP
0
|
|
=
|
|
the average of the Last Reported Sale Prices of
shares of Common Stock over the Spin-off Valuation
Period
|
Any such adjustment made pursuant to this subsection (c) shall be made
successively whenever any such distribution is made and shall become effective
immediately prior to the opening of business on the Ex-dividend Date.
For the avoidance of doubt, the adjustment in this Section 12.07(c) does not
apply to any distributions to the extent that the right to convert Notes has been
changed into the right to convert into Reference Property pursuant to Section 12.11
in respect of such distribution.
(d) In case the Company shall, by dividend or otherwise, at any time distribute
to all or substantially all holders of its shares of Common Stock an all-cash
distribution, excluding any distributions in connection with any liquidation,
dissolution or winding up, the Conversion Rate shall be adjusted based on the
following formula:
CR
1
= CR
0
´
SP
0
SP
0
-
C
where,
|
|
|
|
|
CR
0
|
|
=
|
|
the Conversion Rate in effect at the close of business immediately
prior to the Ex-dividend Date
|
|
|
|
|
|
CR
1
|
|
=
|
|
the Conversion Rate in effect on the Ex-dividend Date
|
|
|
|
|
|
SP
0
|
|
=
|
|
the Current Market Price
|
|
|
|
|
|
C
|
|
=
|
|
the amount in cash per share the Company distributes to holders of
shares of Common Stock (and for which no other adjustment has been made)
|
25
Any such increase shall become effective immediately prior to the opening of business on the
Ex-dividend Date.
For the avoidance of doubt, the adjustment in this Section 12.07(d) does not
apply to any distributions to the extent that the right to convert Notes has been
changed into the right to convert into Reference Property pursuant to section 12.11
in respect of such distribution.
(e) In case the Company or any of its Subsidiaries purchases all or any portion
of the shares of Common Stock pursuant to a tender offer, to the extent the cash and
value of any other consideration included in the payment per share of Common Stock
exceeds the Last Reported Sale Price on the Trading Day next succeeding the last
date on which tenders may be made pursuant to such tender offer (the Expiration
Date), the Conversion Rate shall be adjusted based on the following formula:
CR
1
= CR
0
´
FMV
0
+ (SP
1
´
OS
1
)
OS
0
´
SP
1
where,
|
|
|
|
|
CR
0
|
|
=
|
|
the Conversion Rate in effect on the Expiration Date
|
|
|
|
|
|
CR
1
|
|
=
|
|
the Conversion Rate in effect immediately after the Expiration Date
|
|
|
|
|
|
FMV
0
|
|
=
|
|
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value and which
shall be evidenced by an Officers Certificate delivered to the Trustee) of the
aggregate value of all cash and/or any other consideration paid or payable for
shares of Common Stock validly tendered or exchanged and not withdrawn as of the
Expiration Date
|
|
|
|
|
|
OS
0
|
|
=
|
|
the number of shares of Common Stock outstanding immediately prior to
the Expiration Date
|
|
|
|
|
|
OS
1
|
|
=
|
|
the number of shares of Common Stock outstanding immediately after the
Expiration Date, excluding any shares accepted for purchase or exchange
|
|
|
|
|
|
SP
1
|
|
=
|
|
the average of the Last Reported Sale Price of the shares of Common
Stock over the 10 Trading Days beginning on the Trading Day after the Expiration
Date
|
Any such increase shall become effective immediately prior to the opening of
business on the Expiration Date. In the event that the Company is obligated to
purchase shares pursuant to such tender offer, but the Company is prevented by
applicable law from effecting any or all such purchases or any or all such
26
purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate
which would have been in effect based upon the number of shares actually purchased.
If the application of this Section 12.07(e) to any tender offer would result in a
decrease in the Conversion Rate, no adjustment shall be made for such tender offer
under this Section 12.07(e).
For purposes of this Section 12.07(e), the term tender offer shall mean and
include both tender offers and exchange offers, all references to purchases of
shares in tender offers (and all similar references) shall mean and include both the
purchase of shares in tender offers and the acquisition of shares pursuant to
exchange offers, and all references to tendered shares (and all similar
references) shall mean and include shares tendered in both tender offers and
exchange offers.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e)
of this Section 12.07, the Current Market Price of the shares of Common Stock on
any day means the average of the Last Reported Sale Price of the shares of Common
Stock for each of the 10 consecutive Trading Days ending on the earlier of the day
in question and the day before the Ex-dividend Date with respect to the issuance or
distribution requiring such computation.
(g) In any case in which this Section 12.07 shall require that an adjustment be
made immediately prior to the opening of business on the Ex-dividend Date, the
Company may elect to defer (but only until five Business Days following the filing
by the Company with the Trustee of the certificate described in Section 12.09)
issuing to the Holder of any Note converted after such Ex-dividend Date any shares
of Common Stock issuable upon such conversion over and above any shares of Common
Stock issuable upon such conversion only on the basis of the Conversion Rate prior
to adjustment; and, in lieu of the shares the issuance of which is so deferred, the
Company shall issue or cause its transfer agents to issue due bills or other
appropriate evidence prepared by the Company of the right to receive such shares. If
any action in respect of which an adjustment to the Conversion Rate is required to
be made immediately prior to the opening of business on the Ex-dividend Date
therefor is not thereafter made or paid by the Company for any reason, the
Conversion Rate shall be readjusted to the Conversion Rate which would then be in
effect if such action had not occurred.
Section 12.08
No Adjustment
Notwithstanding anything herein to the contrary, no adjustment in the
Conversion Rate shall be required unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Rate as last adjusted;
provided
,
however
,
that any adjustments which by reason of this Section 12.08 are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. In addition, the Company will make any carry forward
adjustments not otherwise effected (A) upon conversion of the Notes, (B) upon
required purchases of the Notes in connection with a Fundamental Change, (C) in
27
connection with a call for redemption and (D) 25 scheduled Trading Days prior to the
Stated Maturity of the Notes. No adjustment to the Conversion Rate will be made if
it results in a Conversion Price that is less than the par value (if any) of the
shares of Common Stock. No adjustment to the Conversion Rate will be made if the
Holders of the Notes participate, as a result of holding the Notes, in any of the
transactions described in subsection (a), (b), (c), (d) or (e) of Section 12.07
without conversion. All calculations under this Article Twelve shall be made to the
nearest cent or to the nearest 1/1000th of a share, as the case may be.
In the event that the Company implements a shareholder rights plan, upon
conversion of the Notes, the Holders will receive, in addition to shares of Common
Stock issuable upon such conversion, if any, the rights issued under such rights
plan unless, prior to any conversion, the rights plan expires or terminates or the
rights have separated from the shares of Common Stock in accordance with the
provisions of the applicable shareholder rights agreement, in which case, and only
in such case, the Conversion Rate will be adjusted at the time of separation as if
the Company distributed, to all holders of shares of Common Stock, shares of the
Companys capital stock, evidences of debt or other assets as described in
subsection (c) of Section 12.07, subject to readjustment in the event of the
expiration, termination or redemption of the rights. Any distribution of rights
pursuant to a shareholder rights plan complying with the requirements set forth in
the immediately preceding sentence of this paragraph shall not otherwise constitute
a distribution of securities for the purposes of Section 12.07(a), Section 12.07(b)
or Section 12.07(c).
Except as otherwise provided in this Article Twelve, no adjustment need be made
for the issuance or acquisition of shares of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock or that carry the right
to purchase any of the foregoing. Without limiting the generality of any other
provision hereof, the Conversion Rate shall not be adjusted for:
(1) the issuance of shares of Common Stock pursuant to any present or future plan
providing for the reinvestment of distributions or interest payable on securities of
the Company and the investment of additional optional amounts in shares of Common
Stock under any such plan;
(2) upon the issuance of shares of Common Stock or options or rights to purchase
shares of Common Stock pursuant to any present or future employee, director or
consultant benefit plan or program of or assumed by the Company or any of its
Subsidiaries;
(3) upon the issuance of shares of Common Stock pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security;
(4) for a change in the par value (or a change to no par value) of shares of Common
Stock; or
28
(5) for accumulated and unpaid dividends.
To the extent that the Notes become convertible into the right to receive cash,
no adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
Section 12.09
Notice of Adjustment
Whenever the Conversion Rate is adjusted, the Company shall promptly mail to
Holders a notice of the adjustment and file with the Trustee an Officers
Certificate specifying the adjusted Conversion Rate, and briefly stating the facts
requiring the adjustment and the manner of computing it.
Section 12.10
Notice of Certain Transactions
In the event that:
(1) the Company takes any action which would require an adjustment in the Conversion
Rate,
(2) the Company takes any action that requires a supplemental indenture pursuant to
Section 12.11, or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice stating the proposed
record or effective date, as the case may be. The Company shall mail the notice at least
fifteen days before such date. Failure to mail such notice or any defect therein shall not
affect the validity of any transaction referred to in clause (1), (2) or (3) of this Section
12.10.
Section 12.11
Effect of Recapitalization, Reclassification, Consolidation, Merger or
Sale on Conversion Privilege
In the event that the Company is party to any of the following: (a) any
recapitalization or reclassification (in each case, other than a change in par
value, or from par value to no par value, or from no par value to par value, or a
combination or subdivision of the Common Stock), consolidation, merger or
combination, or binding share exchange; or (b) any sale or conveyance of all or
substantially all of the property and assets of the Company (computed on a
consolidated basis) to another Person in each case under clause (a) or (b) pursuant
to which the shares of Common Stock would be converted into cash, securities or
other property (each, a Reorganization Event), then from and after the
effective time of any such Reorganization Event, the right to receive shares of
Common Stock (or shares of other stock, other securities or other property or assets
(including cash) or any combination thereof), if any, upon conversion of a Note with
respect to the portion of the Daily Conversion Value Amount in excess of $50.00 will
be changed into the right to receive the kind and amount of shares of
29
stock, other
securities or other property or assets (including cash) or any combination thereof
(in the same proportions) that a holder would have been entitled to receive (the
Reference Property) in such Reorganization Event in respect of such shares of
Common Stock, and the Daily Conversion Value Amounts and Daily Share Amounts will be
determined based on the values and amounts, respectively, of one unit of Reference
Property (a unit of Reference Property being the kind and amount (in the same
proportions) of Reference Property that a holder of one share of Common Stock would
receive in such Reorganization Event), and the Conversion Rate will relate to such
units of Reference Property. The Company, or such successor, purchasing or
transferee corporation, as the case may be, shall (if consideration is receivable by
holders of the shares of Common Stock in such Reorganization Event), as a condition
precedent to such Reorganization Event, execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Note then outstanding shall
have the right to receive such Reference Property. Such supplemental indenture
shall provide for adjustments of the Conversion Rate which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Rate provided
for in this Article Twelve. If, in the case of any such Reorganization Event, the
stock or other securities and property (including cash) receivable thereupon, if
any, by a holder of shares of Common Stock include shares of stock or other
securities and property of a Person other than the successor, purchasing or
transferee corporation, as the case may be, in such Reorganization Event, then such
supplemental indenture shall also be executed by such other Person and shall contain
such additional provisions to protect the interests of the Holders of the Notes as
the Board of Directors shall reasonably consider necessary by reason of the
foregoing. The provisions of this Section 12.11 shall similarly apply to successive
Reorganization Events.
In the event the Company shall execute a supplemental indenture pursuant to
this Section 12.11, the Company shall promptly file with the Trustee (x) an
Officers Certificate briefly stating the reasons therefor, the kind or amount of
shares of stock or other securities or property (including cash) receivable by
Holders of the Notes, if any, upon the conversion of their Notes after any such
Reorganization Event, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with and (y) an Opinion of Counsel that all
conditions precedent have been complied with, and shall promptly mail notice thereof
to all Holders.
For purposes of determining the constitution of Reference Property, the type
and amount of consideration that a holder of shares of Common Stock would have been
entitled to in the case of any Reorganization Event that causes the
shares of Common Stock to be converted into the right to receive more than a
single type of consideration (determined based in part upon any form of shareholder
election) will be deemed to be (1) if the holders of a majority of the shares of
Common Stock make an affirmative election, the forms and amount of consideration
actually received with respect to a plurality of the shares of Common Stock held by
holders of the shares of Common Stock who make an
30
affirmative election or (2) if the
holders of a majority of the shares of Common Stock do not make an affirmative
election, the weighted average of the types and amount of consideration actually
received by holders of shares of Common Stock. This Section 12.11 shall not affect
the right of a Holder of Notes to convert its Notes in accordance with the
provisions of Article Twelve hereof prior to the effective date of the applicable
Reorganization Event.
Section 12.12
Trustees Disclaimer
The Trustee shall have no duty to determine when an adjustment under this
Article Twelve should be made, how it should be made or what such adjustment should
be, but may accept as conclusive evidence of that fact or the correctness of any
such adjustment, and shall be protected in relying upon, an Officers Certificate
including the Officers Certificate with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 12.09. The Trustee makes no
representation as to the validity or value of any securities or assets issued upon
conversion of Notes, and the Trustee shall not be responsible for the Companys
failure to comply with any provisions of this Article Twelve.
The Trustee shall not be under any responsibility to determine the correctness
of any provisions contained in any supplemental indenture executed pursuant to
Section 12.11, but may accept as conclusive evidence of the correctness thereof, and
shall be fully protected in relying upon, the Officers Certificate with respect
thereto which the Company is obligated to file with the Trustee pursuant to Section
12.11.
Section 12.13
Voluntary Increase
The Company from time to time may to the extent permitted by law and subject to
the applicable rules of the Nasdaq Global Select Market or other exchange upon which
the Common Stock is traded or quoted, increase the Conversion Rate by any amount for
any period of time if the period is at least 20 days. In such event, the Company
shall give at least 15 days notice of such increase.
Section 12.14
Increase to Avoid or Diminish Income Tax
The Company may make such increases in the Conversion Rate, in addition to
those otherwise required by this Article Twelve, as the Board of Directors considers
to be advisable to avoid or diminish any income tax to holders of shares of Common
Stock, the holders of the Notes or other rights to purchase
shares of Common Stock resulting from any dividend or distribution of shares
(or rights to acquire shares) or from any event treated as such for income tax
purposes.
31
ARTICLE THIRTEEN
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
Section 13.01
General
The Company may be required to repurchase Notes in accordance with their terms
and in accordance with this Article.
Notes shall be purchased by the Company as provided under the paragraph
Repurchase by the Company at the Option of the Holder of the Notes on June 1,
2013, June 1, 2018, and June 1, 2023 (each, a Repurchase Date), at the repurchase
price specified therein (the Repurchase Price), at the option of the Holder
thereof, upon:
(1) delivery to the Paying Agent, by the Holder of a written notice of purchase
(a Repurchase Notice) at any time from the opening of business on the date that is
20 Business Days prior to a Repurchase Date until the close of business on such
Repurchase Date stating:
(A) the certificate number of the Note which the Holder will deliver to be
repurchased,
provided
,
that
if any of the Notes is in the form of a Global Security,
then a beneficial owner of a Note shall comply with the procedures of the Depositary
applicable to the repurchase of a Global Security,
(B) the portion of the Principal Amount of the Note which the Holder will
deliver to be repurchased, which portion must be $1,000 or an integral multiple
thereof,
(C) that such Note shall be purchased as of the Repurchase Date pursuant to the
terms and conditions specified under the caption Repurchase by the Company at the
Option of the Holder of the Note and in this Indenture, and
(2) book-entry transfer or delivery of such Note to the Paying Agent prior to,
on or after the Repurchase Date (together with all necessary endorsements) at the
offices of the Paying Agent, such delivery being a condition to receipt by the
Holder of the Repurchase Price therefor;
provided
,
however
, that such Repurchase
Price shall be so paid pursuant to this Article Thirteen only if the Note so
delivered to the Paying Agent shall conform in all respects to the description
thereof in the related Repurchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this Article
Thirteen, a portion of a Note if the Principal Amount of such portion is $1,000 or
an integral multiple of $1,000. Provisions of this Indenture that apply to
the purchase of all of a Note also apply to the purchase of such portion of
such Note.
32
Any purchase by the Company contemplated pursuant to the provisions of this
Article Thirteen shall be consummated by the delivery of the consideration to be
received by the Holder promptly following the later of the Repurchase Date and the
time of book-entry transfer or delivery of the Note.
Notwithstanding anything herein to the contrary, any Holder delivering to the
Paying Agent the Repurchase Notice contemplated by this Section 13.01 shall have the
right to withdraw such Repurchase Notice at any time prior to the close of business
on the Repurchase Date by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 13.04.
The Paying Agent shall promptly notify the Company of the receipt by it of any
Repurchase Notice or written notice of withdrawal thereof.
Section 13.02
Notice of the Company
No later than 20 Business Days prior to each Repurchase Date, the Company shall
send a notice (a Company Notice) to holders of Notes of the repurchase right,
which shall include a form of Repurchase Notice and which shall state, among other
things:
(A) the Repurchase Price and the Conversion Rate;
(B) the name and address of the Paying Agent and the Conversion Agent;
(C) that Notes as to which a Repurchase Notice has been given may be converted
pursuant to Article Twelve hereof only if the applicable Repurchase Notice has been
withdrawn in accordance with the terms of this Indenture;
(D) that Notes must be surrendered to the Paying Agent to collect payment;
(E) that the Repurchase Price for any Note as to which a Repurchase Notice has
been given and not withdrawn will be paid promptly following the later of the
Repurchase Date and the time of surrender of such Note as described in (D);
(F) the procedures the Holder must follow to exercise repurchase rights under
this Article Thirteen and a brief description of those rights;
(G) a brief description of the conversion rights of the Notes; and
(H) the procedures for withdrawing a Repurchase Notice.
At the Companys request, the Trustee shall give such Company Notice in the
Companys name and at the Companys expense;
provided
,
however
, that, in all cases,
the text of such Company Notice shall be prepared by the Company.
33
If any of the Notes is in the form of a Global Security, then the Company shall
modify such notice to the extent necessary to accord with the procedures of the
Depositary applicable to the repurchase of Global Securities.
Section 13.03
Procedure upon Repurchase
The Company shall deposit cash at the time and in the manner as provided in
Section 13.05, sufficient to pay the aggregate Repurchase Price of all Notes to be
purchased on the applicable Repurchase Date pursuant to this Article Thirteen.
Section 13.04
Effect of Repurchase Notice
Upon receipt by the Paying Agent of the Repurchase Notice, the Holder of the
Note in respect of which such Repurchase Notice was given shall (unless such
Repurchase Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Repurchase Price with respect to such
Note. Such Repurchase Price shall be paid to such Holder promptly following the
later of (x) the Repurchase Date with respect to such Note (provided the conditions
in Section 13.01 have been satisfied) and (y) the time of book-entry transfer or
delivery of such Note to the Paying Agent by the Holder thereof in the manner
required by Section 13.01. Notes in respect of which a Repurchase Notice has been
given by the Holder thereof may not be converted pursuant to Article Twelve hereof
on or after the date of the delivery of such Repurchase Notice unless such
Repurchase Notice has first been validly withdrawn as specified in the following
paragraph.
A Repurchase Notice may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Repurchase Notice
at any time prior to the close of business on the applicable Repurchase Date
specifying:
(1) the certificate number of the Note in respect of which such notice of
withdrawal is being submitted or if any of the Notes is in the form of a Global
Security, then a beneficial owner of a Note shall comply with the procedures of the
Depositary applicable to the withdrawal of a Repurchase Notice;
(2) the Principal Amount of the Note with respect to which such notice of
withdrawal is being submitted; and
(3) the Principal Amount, if any, of such Note which remains subject to the
original Repurchase Notice and which has been or will be delivered for purchase by
the Company.
There shall be no purchase of any Notes pursuant to this Article Thirteen if
there has occurred (prior to, on or after, as the case may be, the giving, by the
Holders of such Notes, of the required Repurchase Notice) and is continuing an Event
of Default (other than a default in the payment of the Repurchase Price with respect
to the Notes). The Paying Agent will promptly return to the respective
34
Holders
thereof any Notes (x) with respect to which a Repurchase Notice has been withdrawn
in compliance with this Indenture, or (y) held by it during the continuance of an
Event of Default (other than a default in the payment of the Repurchase Price with
respect to such Notes) in which case, upon such return, the Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.
Section 13.05
Deposit of Repurchase Price
Prior to 11:00 a.m. (New York City time) on the Business Day following the
Repurchase Date, the Company shall deposit with the Trustee or with the Paying Agent
an amount of money (in immediately available funds if deposited on such Business
Day) sufficient to pay the aggregate Repurchase Price of all of the Notes or
portions thereof which are to be purchased as of the Repurchase Date. If the
Trustee or the Paying Agent holds, in accordance with the terms hereof at 11:00 a.m.
on the Business Day following the Repurchase Date, cash sufficient to pay the
Repurchase Price of any Notes for which a Repurchase Notice has been tendered and
not withdrawn pursuant to Section 13.04, then, on and after such date, such Notes
will cease to be outstanding and interest, if any, on such Notes will cease to
accrue, whether or not such Notes are transferred by book entry or delivered to the
Trustee or Paying Agent, and the rights of the Holders in respect thereof shall
terminate (other than the right to receive the Repurchase Price upon delivery of
such Notes, together with any necessary endorsement) and the repurchased Notes shall
be cancelled.
Section 13.06
Securities Repurchased in Part
Any Note which is to be purchased only in part shall be surrendered at the
office of the Paying Agent (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company or the Trustee duly executed by, the Holder thereof or such Holders
attorney duly authorized in writing) and the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Note, without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder in
aggregate Principal Amount equal to, and in exchange for, the portion of the
Principal Amount of the Note so surrendered which is not purchased.
Section 13.07
Compliance with Securities Laws Upon Purchase of Securities
In connection with any offer to purchase or purchase of Notes under this
Article Thirteen, the Company shall (i) comply with Rule 13e-4 under the Exchange
Act (or any successor to such Rule), if applicable, and (b) file the
related Schedule TO (or any successor or similar schedule, form or report) if
required under the Exchange Act.
Section 13.08
Repayment to the Company
35
The Trustee and the Paying Agent shall return to the Company any cash that
remains unclaimed for two years, subject to applicable unclaimed property law,
together with interest, if any, thereon held by them for the payment of the
Repurchase Price;
provided
,
however
, that to the extent the aggregate amount of cash
deposited by the Company pursuant to Section 13.05 exceeds the aggregate Repurchase
Price of the Notes or portions thereof which the Company is obligated to purchase as
of the Repurchase Date, then promptly after the Business Day following the
Repurchase Date the Trustee shall return any such excess to the Company together
with interest, if any, thereon. After that, Holders entitled to money must look to
the Company for payment as general creditors, unless an applicable abandoned
property law designates another Person.
SECTION 211
Amendment to Events of Default.
(a) Section 6.01 of the Indenture is amended to delete the existing paragraph
(8) thereof and to add the following paragraphs immediately following paragraph (7)
thereof with respect to the Notes:
(8) the Companys failure to deliver cash, or, if applicable, shares of Common Stock,
upon conversion of a Note, and that failure continues for 10 days;
(9) the Companys failure to give notice to the Trustee and each Holder of the Notes of
a Fundamental Change as provided in Section 12.02; or
(10) the Company or any of its Subsidiaries defaults under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or any of its Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Subsidiaries), which default (a) is caused
by a failure to pay principal of, or premium or interest on such indebtedness prior to the
expiration of any grace period provided in such indebtedness (a Payment Default) or
(b) results in the acceleration of such indebtedness prior to its Stated Maturity and, in
each case, the principal amount of any such indebtedness, together with the principal amount
of any other such indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates in excess of $25,000,000 and provided, further,
that if any such default is cured or waived or any such acceleration rescinded, or such
indebtedness is repaid, within a period of 10 days from the continuation of such default
beyond the applicable grace period or the occurrence of such acceleration, as the case may
be, such Event of Default and any consequential acceleration of the Notes shall be
automatically rescinded, so long as such rescission does not conflict with any judgment or
decree.
(b) Section 6.01 of the Indenture is amended by inserting the following
paragraph after the final paragraph in Section 6.01:
Notwithstanding anything herein or in the Notes to the contrary, to the extent
elected by the Company, the sole remedy for an Event of Default relating to the
failure to file any documents or reports that the Company is required to file
36
with
the Securities and Exchange Commission (the SEC) pursuant to Section 13 or 15(d)
of the Exchange Act and for any failure to comply with the requirements of Section
314(a)(1) of the Trust Indenture Act, will for the first 120 days after the
occurrence of such an Event of Default consist exclusively of the right to receive
additional interest on the notes equal to 0.25% of the Principal Amount of the Notes
(the Additional Interest). If the Company so elects, such Additional Interest
will be effective with respect to all outstanding Notes on or before the date on
which such Event of Default first occurs. On the 120th day after such Event of
Default (if the Event of Default relating to the reporting obligations is not cured
or waived prior to such 120th day), the Notes will be subject to acceleration as
provided in this Section 6.01 and Section 6.02. The provisions of the Indenture
described in this paragraph will not affect the rights of Holders of the Notes in
the event of the occurrence of any other Event of Default. In the event the Company
does not elect to pay the Additional Interest upon an Event of Default in accordance
with this paragraph, the Notes will be subject to acceleration as provided in this
Section 6.01 and Section 6.02.
SECTION 212
Calculations.
Article Eleven is amended by adding the following section:
Section 11.15.
Calculations
.
Except as otherwise provided herein, the Company will be responsible for making all
calculations called for under this Indenture and the Notes (including any determinations of
the Last Reported Sale Price, the VWA Price, accrued interest and the Daily Settlement
Amounts). The Company shall make all such calculations in good faith and, absent manifest
error, its calculations will be final and binding on Holders. The Company upon request
shall provide a schedule of its calculations to each of the Trustee and the Conversion
Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively upon
the accuracy of the Companys calculations without independent verification. The Trustee
shall deliver a copy of such schedule to any Holder upon the written request of such
Holder.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301
Integral Part.
This First Supplemental Indenture constitutes an integral part of the Indenture.
SECTION 302
General Definitions.
For all purposes of this First Supplemental Indenture:
(a) capitalized terms used herein without definition shall have the meanings specified in the
Indenture; and
37
(b) the terms herein, hereof, hereunder and other words of similar import refer to this
First Supplemental Indenture.
SECTION 303
Adoption, Ratification and Confirmation.
The Indenture, as supplemented and amended by this First Supplemental Indenture, is in all
respects hereby adopted, ratified and confirmed.
SECTION 304
Counterparts.
This First Supplemental Indenture may be executed in any number of counterparts, each of which
when so executed shall be deemed an original; and all such counterparts shall together constitute
but one and the same instrument.
SECTION 305
Governing Law.
THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
38
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the day and year first written above.
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CARRIZO OIL & GAS, INC.
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By:
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/s/ Paul F. Boling
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Name:
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Paul F. Boling
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Title:
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Vice President and Chief
Financial Officer
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Patrick T. Giordano
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Name:
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Patrick T. Giordano
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Title:
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Vice President
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39
ANNEX A
[FORM OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED
HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.]
4.375% CONVERTIBLE SENIOR NOTE DUE 2028
CARRIZO OIL & GAS, INC.
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Maturity: June 1, 2028
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Principal Amount: $
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CUSIP: 144577 AA1
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Registered: No. R-
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ISIN: US144577AA15
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Carrizo Oil & Gas, Inc., a Texas corporation (herein called the Company, which term includes
any successor corporation under the indenture hereinafter referred to), for value received, hereby
promises to pay to [___], or registered assigns, the principal sum of [___] Dollars ($) on June 1,
2028 and to pay interest thereon in immediately available funds as specified on the other side of
this Security. This Security is convertible as specified on the reverse of this Security.
Payment of the principal of and interest on this Security will be made at the office or agency
of the Company maintained for that purpose in The City of New York, New York or Dallas, Texas in
such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of the Company, payment
of interest may be made by check mailed to the address of the Person
A-1
entitled thereto as such address shall appear in the register of Securities or by wire
transfer of immediately available funds to the accounts designated by the Holder of this Security.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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CARRIZO OIL & GAS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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A-2
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
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Authorized Signatory
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Date of Authentication:
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A-3
[Reverse of Security]
CARRIZO OIL & GAS, INC.
4.375% CONVERTIBLE SENIOR NOTE DUE 2028
This Security is one of a duly authorized issue of Securities of the Company issued and to be
issued in one or more series under an Indenture, dated as of May 28, 2008, as amended by the First
Supplemental Indenture thereto dated as of May 28, 2008 (as so amended, herein called the
Indenture), between the Company and Wells Fargo Bank, National Association, as trustee (herein
called the Trustee, which term includes any successor trustee under the Indenture), or their
respective predecessors, as applicable, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, which is initially in the aggregate principal
amount of $373,750,000. As used herein, the term Securities means the Companys 4.375%
Convertible Senior Notes due 2028.
The Company may, without the consent of the existing holders of the Securities, issue
additional Securities having the same ranking and the same interest rate, maturity and other terms
as the Securities. Any additional Securities having such similar terms, together with the
Securities, will constitute a single series of Securities under the Indenture.
Interest
The rate at which this Security shall bear interest shall be 4.375% per annum. Interest on
the Notes shall accrue from the date of issuance, or from the most recent date to which interest
has been paid or provided for on the Notes. The Interest Payment Dates on which interest on this
Security shall be payable are June 1 and December 1 of each year, commencing on December 1, 2008.
The Regular Record Date for the interest payable on this Security on any Interest Payment Date
shall be the May 15 or November 15, as the case may be, immediately preceding such Interest Payment
Date. Interest will cease to accrue on this Security upon its maturity, conversion, purchase by
the Company at the option of a holder or redemption.
Method of Payment
Payments in respect of principal of and interest, if any, on the Securities shall be made by
the Company in immediately available funds.
Optional Redemption
No sinking fund is provided for the Securities. On or after June 1, 2013, the Securities are
redeemable as a whole, or from time to time in part, at any time at the option of the Company at a
redemption price (the Redemption Price) equal to the Principal Amount plus accrued and unpaid
interest up to but excluding the Redemption Date. However, if the Redemption Date is after a
Regular Record Date and on or prior to the corresponding Interest Payment Date, the interest will
be paid on the Redemption Date to the person in whose name the Securities are
A-4
registered at the close of business on the Regular Record Date and not included in the
Redemption Price.
If the Company redeems less than all of the outstanding Securities, the Trustee will select
the Securities to be redeemed (i) at random, (ii) by lot or (iii) by any other method the Trustee
considers fair and appropriate. If the Trustee selects a portion of a Holders Securities for
partial redemption and the Holder converts a portion of the same Securities, the converted portion
will be deemed to be from the portion selected for redemption.
Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60
days before the Redemption Date to each Holder of Securities to be redeemed at its registered
address. Securities in denominations larger than $1,000 Principal Amount may be redeemed in part,
but only in whole multiples of $1,000. On and after the Redemption Date, subject to the deposit
with the Paying Agent of funds sufficient to pay the Redemption Price, interest ceases to accrue on
Securities or portions thereof called for redemption.
Purchase of Securities at Option of Holder Upon a Fundamental Change
At the option of the Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase all or any part specified by the Holder (so long as the
Principal Amount of such part is $1,000 or an integral multiple of $1,000 in excess thereof) of the
Securities held by such Holder on a date selected by the Company that is not less than 20 Business
Days and not more than 35 Business Days (or a longer period if required by law) after the Company
mails a notice of the Fundamental Change to the Holders, at a Fundamental Change Purchase Price
equal to the Principal Amount plus accrued and unpaid interest up to but excluding the Fundamental
Change Purchase Date. However, if the Fundamental Change Purchase Date is after a Regular Record
Date and on or prior to the corresponding Interest Payment Date, the interest will be paid on the
Interest Payment Date to the person in whose name the Securities are registered at the close of
business on the Regular Record Date and not included in the Fundamental Change Purchase Price. The
Holder shall have the right to withdraw any Fundamental Change Purchase Notice (in whole or in a
portion thereof that is $1,000 Principal Amount or an integral multiple of $1,000 in excess
thereof) at any time prior to the close of business on the Business Day prior to the Fundamental
Change Purchase Date by delivering a written notice of withdrawal to the Paying Agent in accordance
with the terms of the Indenture.
Conversion
A Holder of a Security may convert the Principal Amount of such Security (or any portion
thereof equal to a Principal Amount of $1,000 or any integral multiple of a Principal Amount of
$1,000 in excess thereof) into, for each $1,000 Principal Amount of Securities converted, cash and
shares of Common Stock, if any, equal to the sum of the Daily Settlement Amounts (such sum, the
Conversion Proceeds) for each of the 20 VWAP Trading Days during the relevant Conversion Period,
at any time during the periods described below;
provided
,
however
, that the Company will deliver
cash in lieu of fractional shares (including, without
A-5
limitation, by check or wire transfer) based upon the VWA Price on the last VWAP Trading Day
in the Conversion Period as described in the Indenture. The Securities may be surrendered for
conversion during any period in which one of the following conditions is satisfied:
(a)
Conversion Based on Common Stock Price
. During any calendar quarter commencing at any time
after June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for at
least 20 Trading Days in the period of 30 consecutive Trading Days ending on the last Trading Day
of the preceding calendar quarter exceeds 130% of the Conversion Price per share on the last day of
such preceding calendar quarter. The Company will determine at the beginning of each calendar
quarter commencing at any time after June 30, 2008 whether the Securities are convertible as a
result of the price of the shares of Common Stock and shall promptly notify the Trustee and the
Conversion Agent thereof. Upon determining that the Holders are entitled to convert their
Securities in accordance with this subsection (a), the Company will promptly (1) issue a press
release and use its reasonable efforts to post such information on its website or otherwise
publicly disclose this information or (2) provide notice to the Holders in a manner contemplated by
the Indenture, including through the facilities of DTC.
(b)
Conversion Based on Trading Price
. Prior to the Stated Maturity of the Securities, during
the five (5) consecutive Business Days immediately after any five (5) consecutive Trading Day
period in which the Trading Price per $1,000 Principal Amount of the Securities, as determined
following a request by a Holder of the Securities in accordance with the procedures described
below, was equal to or less than ninety-seven percent (97%) of the Conversion Value on each such
Trading Day (the Trading Price Condition). The Bid Solicitation Agent shall not have any
obligation to determine the Trading Price unless the Company has requested such determination, and
the Company shall have no obligation to make such request unless a Holder of at least five million
dollars ($5,000,000) in aggregate Principal Amount of the Securities provides the Company with
reasonable evidence that the Trading Price per $1,000 Principal Amount of the Securities would be
equal to or less than ninety-seven percent (97%) of the Conversion Value. Upon receipt of such
evidence, the Company shall instruct the Bid Solicitation Agent to determine the Trading Price per
$1,000 Principal Amount of the Securities for each of the five (5) successive Trading Days
immediately after the Company receives such evidence and on each Trading Day thereafter until the
first Trading Day on which the Trading Price Condition is no longer satisfied. The Company will
thereupon, promptly after the Securities become convertible into cash and, if applicable, shares of
Common Stock in accordance with this clause (b) and promptly after the Securities become no longer
so convertible in accordance with this clause (b), give the Conversion Agent and the Trustee notice
thereof. Upon determining that the Holders are entitled to convert their Securities in accordance
with this subsection (b), the Company will promptly (1) issue a press release and use its
reasonable efforts to post such information on its website or otherwise publicly disclose this
information or (2) provide notice to the Holders in a manner contemplated by the Indenture,
including through the facilities of DTC. For purposes of this paragraph, the Conversion Value per
$1,000 Principal Amount of Securities, on a given Trading Day, means the product of the Last
Reported Sale Price on such Trading Day and the Conversion Rate in effect on such Trading Day.
Except as described below, the Trading Price, as referred to in this subsection (b), of the
Securities on any day means the average secondary market bid quotations per $1,000
A-6
Principal Amount of Securities obtained by the Bid Solicitation Agent for $5,000,000 Principal
Amount of Securities at approximately 4:00 p.m., New York City time, on such day from three
independent nationally recognized securities dealers to be selected by the Company. However, if the
Bid Solicitation Agent can reasonably obtain only two such bids, then the average of the two bids
will instead be used, and if the Bid Solicitation Agent can reasonably obtain only one such bid,
then that one bid will be used. If on a given day the Bid Solicitation Agent cannot reasonably
obtain at least one bid for $5,000,000 Principal Amount of Securities from an independent
nationally recognized securities dealer, then the Trading Price per $1,000 Principal Amount of the
Securities on that day will be deemed to be less than 97% of the Conversion Value on that day.
(c)
Conversion Upon Occurrence of Specified Corporate Transactions.
(i) If the Company elects to distribute to all or substantially all holders of shares of
Common Stock (A) rights or warrants entitling them to subscribe for or purchase, for a period
expiring within 60 days of the record date for such distribution, shares of Common Stock at less
than the average of the Last Reported Sale Price for the five (5) consecutive Trading Days ending
on the date immediately preceding the first public announcement of such distribution, or (B) shares
of capital stock, evidence of indebtedness or other assets (excluding dividends or distributions
described in Sections 12.07(a) and 12.07(b) of the Indenture), which distribution has a per share
value exceeding 15% of the Last Reported Sale Price for the five (5) consecutive Trading Days
ending on the date immediately preceding the first public announcement of the distribution, then
the Company must notify the Holders at least 25 scheduled Trading Days prior to the Ex-dividend
Date for such distribution. Once the Company has given such notice, Holders may surrender their
Securities for conversion at any time until the earlier of the close of business on the Business
Day prior to the Ex-dividend Date or the day on which any announcement by the Company that such
distribution will not take place, even if the Securities are not otherwise convertible at that
time. No adjustment to the ability of Holders to convert will be made if Holders are entitled to
participate in the distribution without conversion.
(ii) If there shall occur a Fundamental Change then, at any time from or after the Effective
Date of such Fundamental Change (or the date which is 15 days prior to the anticipated Effective
Date of the transaction described in Section 3.12(a)(ii) of the Indenture) until the later of (a)
the day before the Fundamental Change Purchase Date and (b) 30 days after the actual Effective Date
of such Fundamental Change. The Company shall give notice to the Holders and the Trustee and the
Conversion Agent of any such Fundamental Change and the anticipated Effective Date, if applicable,
and issue a press release providing the same information no later than 15 days prior to the
anticipated Effective Date, unless such Fundamental Change is a Fundamental Change described in
Section 3.12 (a)(i) or (a)(iii) of the Indenture, in which case the Company shall give such notice
no later than the later of (x) one business day following the Effective Date or (y) two business
days following the date on which officers of the Company first learned of the occurrence of such
Fundamental Change following the Effective Date of such Fundamental Change.
(iii) If the Company is party to a combination, merger, recapitalization or reclassification
(in each case, other than a change in par value, or from par value to no par value, or from no par
value to par value, or a combination or subdivision of the Common Stock), binding share
A-7
exchange or similar transaction or sale or conveyance of all or substantially all of the
Companys property and assets, in each case pursuant to which the shares of Common Stock would be
converted into cash, securities or other property that does not also constitute a Fundamental
Change. In such event, a Holder will have the right to convert the Securities at any time
beginning 15 days prior to the anticipated effective date of such transaction (as announced by the
Company) and ending on the 30th scheduled Trading Day following the effective date of such
transaction. The Company shall give written notice to the Holders and the Trustee of any such
transaction as promptly as practicable following the date the Company publicly announces the
transaction but in no event less than 15 days prior to the anticipated effective date of the
transaction.
(d)
Conversion upon Notice of Redemption
. If the Securities have been called for redemption,
at any time after the Company issues a notice of redemption and prior to the close of business on
the Business Day immediately preceding the Redemption Date.
(e)
Conversion During Quarter Prior to Stated Maturity.
At any time on or after March 31,
2028 until the close of business on the Business Day immediately preceding the Stated Maturity.
A Security in respect of which a Holder has delivered a Repurchase Notice exercising the
option of such Holder to require the Company to purchase such Security may be converted only if
such notice of exercise is withdrawn in accordance with the terms of the Indenture. The initial
Conversion Rate is 9.9936, subject to adjustment in certain events described in the Indenture.
Securities surrendered for conversion after the close of business on any Regular Record Date
immediately preceding any Interest Payment Date and prior to the opening of business of such
Interest Payment Date must be accompanied by payment from the Holder of an amount equal to the
interest thereon that the registered Holder is to receive from the Company on such Interest Payment
Date;
provided, however,
that no such payment need be made (1) if the Company has specified a
Fundamental Change Purchase Date following a Fundamental Change that is after the Regular Record
Date and on or prior to the next succeeding Interest Payment Date, (2) only to the extent of
overdue interest, if any overdue interest exists at the date of conversion with respect to a
Security, (3) if the Security is surrendered for conversion after the Regular Record Date
immediately preceding the Stated Maturity of the Security, or (4) if the Security is surrendered in
connection with a call for redemption with a Redemption Date that is after the Regular Record Date
and on or prior to the next succeeding Interest Payment Date. Except where Securities surrendered
for conversion must be accompanied by payment as described above, no interest on converted
Securities will be payable by the Company on any Interest Payment Date subsequent to the date of
conversion.
A Holder may convert a portion of a Security if the Principal Amount of such portion is $1,000
or an integral multiple of $1,000. No payment or adjustment will be made for dividends on the
shares of Common Stock except as provided in the Indenture.
To convert a Security, a Holder must (a) complete and manually sign the conversion notice set
forth below and deliver such notice to a Conversion Agent, (b) surrender the Security to the
Conversion Agent, (c) furnish appropriate endorsements and transfer documents (including
A-8
any certification that may be required under applicable law) if required by the Conversion
Agent, and (d) pay any transfer or similar tax, if required.
Repurchase by the Company at the Option of the Holder
Subject to the terms and conditions of the Indenture, the Company shall become obligated to
purchase, at the option of the Holder, the Securities held by such Holder on June 1, 2013, June 1,
2018 and June 1, 2023 (each, a Repurchase Date), upon delivery of a Repurchase Notice containing
the information set forth in the Indenture, at any time from the opening of business on the date
that is 20 Business Days prior to such Repurchase Date until the close of business on such
Repurchase Date and upon delivery of the Securities to the Paying Agent by the Holder as set forth
in the Indenture.
The Repurchase Price shall be equal to the Principal Amount plus accrued and unpaid interest
up to but excluding the Repurchase Date. If the Repurchase Date is after a Regular Record Date and
on or prior to the corresponding Interest Payment Date, the interest will be paid on the Interest
Payment Date to the person in whose name the Securities are registered at the close of business on
the Regular Record Date and not included in the Repurchase Price.
Holders have the right to withdraw any Repurchase Notice by delivering to the Paying Agent a
written notice of withdrawal prior to the close of business on the Repurchase Date in accordance
with the provisions of the Indenture.
If cash sufficient to pay the Repurchase Price of all Securities or portions thereof to be
purchased as of the Repurchase Date is deposited with the Paying Agent on the Business Day
following the Repurchase Date, interest ceases to accrue on such Securities (or portions thereof)
on such Repurchase Date, and the Holder thereof shall have no other rights as such (other than the
right to receive the Repurchase Price upon surrender of such Security).
Transfer
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the register of the Securities, upon surrender of this
Security for registration or transfer at the office or agency in a Place of Payment for the
Securities, duly endorsed by, or accompanied by a written instrument of transfer in form reasonably
satisfactory to the Registrar duly executed by the Holder thereof or his attorney duly authorized
in writing, and thereupon one or more new Securities, of like tenor and of other authorized
denominations and for the same aggregate principal amount, executed by the Company and
authenticated and delivered by the Trustee, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to certain limitations
set forth therein and on the face of this Security, Securities are exchangeable for a like
aggregate principal amount of Securities of a different authorized denomination as requested by the
Holder surrendering the same.
A-9
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee or any agent of the Company or the Trustee may treat the Person in whose name this Security
is registered as the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Amendment, Supplement and Waiver; Limitation on Suits
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities at any time by the Company and the Trustee with the consent of the Holders of at least a
majority in principal amount of the then outstanding Securities. The Indenture also contains
provisions permitting the Holders of at least a majority in principal amount of the then
outstanding Securities, to waive compliance by the Company with certain existing or past defaults
under the Indenture and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
Subject to the right of the Holder of any Securities to institute proceedings to enforce the
Holders right to receive payment of the principal thereof and interest thereon (or repurchase
price thereof) and to receive shares of Common Stock, if any, on conversion, no Holder of the
Securities shall have any right to institute any proceeding, judicial or otherwise, with respect to
the Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of
Default;
(2) the Holders of not less than 25% in principal amount of the then Outstanding Securities
shall have made written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such request and offer of indemnity has
failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the then outstanding
Securities;
A-10
it being understood and intended that no one or more of such Holders shall have the right in any
manner whatever by virtue of, or by availing of, any provision of the Indenture to prejudice the
rights of any other of such Holders, or to obtain preference or priority over any other of such
Holders.
Successor Corporation
When a successor Person assumes all the obligations of its predecessor under the Securities
and the Indenture in accordance with the terms and conditions of the Indenture, the predecessor
Person will (except in certain circumstances specified in the Indenture) be released from those
obligations.
Defaults and Remedies
If an Event of Default with respect to Securities shall occur and be continuing, all unpaid
Principal Amount plus accrued and unpaid interest through the acceleration date of the Securities
may be declared due and payable in the manner and with the effect provided in the Indenture.
No Recourse Against Others
No recourse shall be had for the payment of the principal of or the interest, if any, on this
Security, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of
the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Company or of any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the enforcement of any
assessment of penalty or otherwise, all such liability being, by acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
Indenture to Control; Governing Law
In the case of any conflict between the provisions of this Security and the Indenture, the
provisions of the Indenture shall control.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Definitions
All terms defined in the Indenture and used in this Security but not specifically defined
herein are used herein as so defined.
A-11
CONVERSION NOTICE
To convert this Security into cash and, if applicable, Common Stock of the Company in accordance
with the Indenture, check the following box: [ ]
To convert only part of this Security, state the Principal Amount to be converted
(must be $1,000 or a multiple of $1,000): $
.
If you want the shares registered in another persons name, fill in the Assignment Form on the
next page.
A-12
ASSIGNMENT FORM
To assign this Security, fill in the form below and have your signature guaranteed: (I) or
(we) assign and transfer this Security to:
(Insert assignees soc. sec. or tax ID. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Dated:
Your Name:
(Print your name exactly as it appears on the face of this Security)
Your Signature:
(Sign exactly as your name appears on the face of this Security)
SIGNATURE GUARANTEE*:
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*
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The signature must be guaranteed by an institution which is a member of one of the following
recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange
Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee.
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A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased, in whole or in part, by the Company
pursuant to Section 3.12 or 13.01 of the Indenture, check the following box:
o
If you want to have only part of this Security purchased by the Company pursuant to Section
3.12 or 13.01 of the Indenture, state the Principal Amount you want to be purchased (must be $1,000
or a multiple of $1,000): $
Your Signature:
Date:
(Sign exactly as your name appears on the other side of this Security)
*
Signature guaranteed by:
By:
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*
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The signature must be guaranteed by an institution which is a member of one of
the following recognized signature guaranty programs: (i) the Securities Transfer Agent
Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the
Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the
Trustee.
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A-14
SCHEDULE A
4.375% SENIOR CONVERTIBLE NOTE DUE 2028
Share Price
Effective Date
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$67.84
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$70.00
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$75.00
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$80.00
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$85.00
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$90.00
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$95.00
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$100.00
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$105.00
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$110.00
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$115.00
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$120.00
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$125.00
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$130.00
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$135.00
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$140.00
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$145.00
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$150.00
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$160.00
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$170.00
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$180.00
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$190.00
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5/28/2008
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4.7470
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4.4876
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3.9626
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3.5249
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3.1567
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2.8446
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2.5781
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2.3490
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2.1508
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1.9783
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1.8274
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1.6947
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1.5774
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1.4731
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1.3801
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1.2968
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1.2218
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1.1541
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1.0369
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0.9392
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0.8568
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0.7865
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6/1/2009
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4.7470
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4.3892
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3.8300
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3.3667
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2.9797
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2.6544
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2.3790
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2.1445
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1.9436
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1.7706
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1.6207
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1.4902
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1.3761
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1.2758
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1.1872
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1.1086
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1.0387
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0.9761
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0.8692
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0.7818
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0.7092
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0.6481
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6/1/2010
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4.7470
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4.3650
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3.6808
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3.1815
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2.7681
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2.4239
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2.1359
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1.8935
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1.6887
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1.5148
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1.3663
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1.2391
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1.1295
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1.0347
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0.9523
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0.8804
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0.8173
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0.7618
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0.6690
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0.5953
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0.5356
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0.4865
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6/1/2011
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4.7470
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4.3407
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3.5095
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2.9566
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2.5031
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2.1302
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1.8230
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1.5692
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1.3590
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1.1845
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1.0391
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0.9177
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0.8160
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0.7304
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0.6581
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0.5968
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0.5446
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0.4999
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0.4283
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0.3743
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0.3327
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0.2999
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6/1/2012
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4.7470
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4.3164
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3.4246
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2.6590
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2.1348
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1.7111
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1.3707
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1.0988
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0.8829
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0.7123
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0.5779
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0.4724
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0.3897
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0.3252
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0.2746
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0.2350
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0.2040
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0.1796
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0.1449
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0.1225
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0.1074
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0.0968
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6/1/2013
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4.7470
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4.2921
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3.3397
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2.5064
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1.7711
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1.1175
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0.5327
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0.0064
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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Schedule A-1