Exhibit 4.4
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED EITHER IN THE INDENTURE OR HEREIN AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN. 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 DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC
TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF
DTC OR A NOMINEE OF SUCH SUCCESSOR.
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT OF 1933 OR (B) IT IS A NON-U.S. PERSON
OUTSIDE THE UNITED STATES ACQUIRING THE SECURITY IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF
1933, (C) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OF 1933, (D) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY
-2-
RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(G) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF
SUCH TRANSFER, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(G)
ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE (2)(G) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE).
UNLESS THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (2)(G) ABOVE, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE,
AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933. THIS LEGEND WILL BE
REMOVED UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY
PURSUANT TO CLAUSE (2)(G) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL
ISSUANCE OF THE SECURITY EVIDENCED HEREBY, AS USED HEREIN, THE TERMS "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
In the event Rule 144(k) as promulgated under the Securities Act is amended
to shorten the two-year period under Rule 144(k), then the references in the
restrictive legends set forth above to "TWO YEARS" will be deemed to refer to
such shorter period, from and after receipt by the Trustee of certain opinions
and certificates. However, such changes will not be made if they are otherwise
prohibited by, or would otherwise cause a violation of, the federal securities
laws applicable at the time. As soon as practicable after we know of the
effectiveness of any such amendment to shorten the two-year period under Rule
144(k), unless such changes would otherwise be prohibited by, or would otherwise
cause a violation of, the federal securities laws applicable at the time, the
Company shall provide to the trustee certain certificates and opinions as to the
effectiveness of such amendment and the effectiveness of such change to the
restrictive legends and transfer restrictions.
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF THE REGISTRATION
RIGHTS AGREEMENT (THE "REGISTRATION RIGHTS AGREEMENT") AMONG THE COMPANY AND THE
INITIAL PURCHASERS, DATED AS OF THE DATE
-3-
HEREOF, PURSUANT TO WHICH, SUBJECT TO THE TERMS AND CONDITIONS THEREOF, THE
COMPANY IS OBLIGATED TO CONSUMMATE THE EXCHANGE OFFER PURSUANT TO WHICH THE
HOLDER OF THIS SECURITY SHALL HAVE THE RIGHT TO EXCHANGE THIS SECURITY FOR 5.60%
NOTES DUE DECEMBER 1, 2006, IN LIKE PRINCIPAL AMOUNT AS PROVIDED THEREIN. THE
SECURITIES ISSUED UNDER THE EXCHANGE OFFER WILL BE EVIDENCE OF THE SAME
CONTINUING INDEBTEDNESS AS UNDER THE SECURITIES ISSUED ON THE ORIGINAL ISSUE
DATE. UNDER NO CIRCUMSTANCES WILL THE SURRENDER OF THE SECURITIES ISSUED ON THE
ORIGINAL ISSUE DATE AND THE ISSUANCE OF THE SECURITIES UNDER THE EXCHANGE OFFER
CONSTITUTE NEW INDEBTEDNESS OR OBLIGATE THE COMPANY TO REPAY THE PRINCIPAL
AMOUNT OF THE SECURITIES ISSUED ON THE ORIGINAL ISSUE DATE. THE SECURITIES
ISSUED ON THE ORIGINAL ISSUE DATE AND THE SECURITIES ISSUED UNDER THE EXCHANGE
OFFER ARE TOGETHER REFERRED TO HEREIN AS THE "SECURITIES." THE SECURITIES ISSUED
ON THE ORIGINAL ISSUE DATE RANK PARI PASSU IN RIGHT OF PAYMENT WITH THE
SECURITIES ISSUED UNDER THE EXCHANGE OFFER.
UNDER CERTAIN CIRCUMSTANCES, THE COMPANY WILL BE OBLIGATED TO PAY CERTAIN
LIQUIDATED DAMAGES TO THE HOLDERS, AS MORE PARTICULARLY SET FORTH IN SECTION 2.5
OF THE REGISTRATION RIGHTS AGREEMENT. THE TERMS OF THE REGISTRATION RIGHTS
AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE AND THE COMPANY SHALL BE
OBLIGATED TO PROVIDE A COPY OF SUCH REGISTRATION RIGHTS AGREEMENT TO THE
TRUSTEE.
Cusip No. 12201PAD8
BURLINGTON RESOURCES FINANCE COMPANY
5.60% NOTES
DUE DECEMBER 1, 2006
Rate of Interest Maturity Date Original Issue Date
---------------- ------------- -------------------
5.60% December 1, 2006 November 16, 2001
No. 001 $500,000,000
Burlington Resources Finance Company, an unlimited liability company
organized and existing under the laws of Nova Scotia, Canada (herein called the
"Company"), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of $500,000,000 on the Maturity Date shown
above, and to pay interest thereon, at the annual rate of interest shown above,
from the Original Issue Date shown above or from the most recent Interest
Payment Date (as hereinafter defined) to which interest has been paid or duly
provided for, payable semiannually on June 1 and December 1 of each year and at
maturity (an "Interest Payment Date"), commencing on the first such date after
the Original Issue Date shown above. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date or within five days thereafter will, as provided in the
Indenture, be paid to the person in whose name this Security is registered at
the close of business on the Record Date for any such Interest Payment Date,
which shall be the May 15 or November 15 next preceding the applicable Interest
Payment Date (whether or not a Business Day). Any such interest not so
punctually paid or duly provided for, and any interest payable on such defaulted
interest (to the extent lawful), will forthwith cease to be payable to the
Holder on such Record Date and shall be paid to the person in whose name this
Security is registered at the close of business on a special record date for the
payment of such defaulted interest to be fixed by the Trustee, notice of which
shall be given to Holders of Securities not less than ten days prior to such
special record date. Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office of the Trustee, 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 any installment of interest may be made
by check mailed to the address of the person entitled thereto as such address
shall appear in the Securities Register or by wire transfer to an account
maintained by the person entitled thereto as specified in the Securities
Register, provided that such person shall have given the Trustee appropriate and
timely written wire instructions.
-2-
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.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
-3-
IN WITNESS WHEREOF, Burlington Resources Finance Company has caused this
instrument to be executed in its corporate name by the facsimile signature of
its duly authorized officers and has caused a facsimile of its corporate seal to
be affixed hereunto or imprinted hereon.
BURLINGTON RESOURCES FINANCE COMPANY
By: /s/ Daniel D. Hawk
--------------------------------------------------
Name: Daniel D. Hawk
Title: Vice President and Treasurer
ATTEST:
By: /s/ Anne Vaughan
--------------------------------------------
Name: Anne Vaughan
Title: Assistant Secretary
DATED: November 16, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 5.60% Notes due December 1, 2006 issued pursuant to the
within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By: /s/ Pat DeFelice
---------------------------------------------
Authorized Signatory
Dated: November 16, 2001
BURLINGTON RESOURCES FINANCE COMPANY
5.60% NOTES
DUE DECEMBER 1, 2006
This Security is one of a duly authorized issue of Securities of the
Company (which term includes any successor Person under the Indenture herein
referred to) designated as its 5.60% Notes due December 1, 2006, issued or to be
issued pursuant to an Indenture, dated as of February 12, 2001 (the
"Indenture"), between the Company and Citibank N.A., as Trustee (the "Trustee,"
which term includes any successor trustee under the Indenture). The Securities
shall be fully and unconditionally guaranteed by Burlington Resources Inc., a
Delaware corporation (the "Guarantor"), pursuant to a Guarantee Agreement dated
as of February 12, 2001 by the Guarantor in favor of the holders of Securities.
The terms of this Security include those stated in the Indenture and in the
Officers' Certificate issued thereunder and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as in effect on the date of the
Indenture. Reference is hereby made to the Indenture and the applicable
officers' certificate issued thereunder for a statement of the respective
rights, limitation of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are a series of Securities issued or to be issued by the
Company under the Indenture, and this Series is unlimited in aggregate principal
amount. As of the Original Issue Date, $500,000,000 principal amount of Notes of
this Series will be issued. The Indenture provides that the Securities of the
Company referred to therein ("Securities"), may be issued in one or more Series,
which different Series may be issued in such aggregate principal amounts and on
such terms (including, but not limited to, terms relating to interest rate or
rates, provisions for determining such interest rate or rates and adjustments
thereto, maturity, redemption (optional and mandatory), covenants and Events of
Default) as may be provided in the officers' certificates or supplemental
indentures relating to the several Series.
The Company acknowledges that:
(a) each of it, Burlington Resources Canada Corporation and Burlington
Acquisition Corporation is, directly or indirectly, a subsidiary of
Burlington Resources Inc., the guarantor of the Securities;
(b) Burlington Acquisition Corporation has made an offer (the "CHEL
Offer") to purchase all of the issued and outstanding common shares of
Canadian Hunter Exploration Ltd. (the "CHEL Common Shares"); and
(c) Burlington Resources Canada Corporation has agreed to make a loan
to Burlington Acquisition Corporation, in an amount at least equal to the
amount of the Securities, (the "BAC Loan") as soon as Burlington
Acquisition Corporation is obligated to pay the purchase price of
two-thirds of the CHEL Common Shares (the "Threshold Amount of CHEL Common
Shares").
-2-
The Company shall transfer all of the proceeds from the issuance of the
Securities, or a like amount (the "Proceeds"), to Burlington Resources Canada
Corporation in exchange for one or more promissory notes (the "BRCC Promissory
Notes"), on or before February 28, 2002, to enable Burlington Resources Canada
Corporation to honor its obligation to make the BAC Loan, provided that the
Company shall not transfer any amount of the Proceeds to Burlington Resources
Canada Corporation, in exchange for BRCC Promissory Notes, until Burlington
Acquisition Corporation is obligated to pay the purchase price of, and to
acquire, the Threshold Amount of CHEL Common Shares.
If
(a) Burlington Acquisition Corporation has not become obligated to pay
the purchase price of the Threshold Amount of CHEL Common Shares on or
before February 28, 2002, or
(b) the CHEL Offer has expired on or before February 28, 2002,
then the Company shall not have complied with its obligation, under the
Securities and the Indenture, to transfer the Proceeds to Burlington Resources
Canada Corporation, in exchange for the BRCC Promissory Notes, and such failure
to transfer the Proceeds shall constitute, and hereinafter be referred to, as an
Event of Failure.
Upon the occurrence of an Event of Failure:
(ii) The Company shall notify the Trustee in writing on the next
succeeding Business Day after an Event of Failure that the Company will
redeem the Securities on a specified Redemption Date no later than 10 days
after the occurrence of an Event of Failure at a redemption price in cash
equal to 100.25% of the principal amount of the Securities (the "Mandatory
Redemption Price") plus the accrued and unpaid interest to the Redemption
Date (the "Special Mandatory Redemption").
(iii) Within two Business Days after an Event of Failure, the Company
shall mail a notice (the "Mandatory Redemption Notice") by first class
mail, postage prepaid, to each Holder at its registered address. The
Mandatory Redemption Notice shall be mailed at least 8 days (or the minimum
if legally required by the Depositary Trust Company) but not more than 10
days before the Redemption Date. At the Company's request, the Trustee
shall give the Mandatory Redemption Notice in the Company's name and at the
Company's expense. The Mandatory Redemption Notice shall identify the
Securities to be redeemed (including the CUSIP number(s)) and shall state:
(A) the Redemption Date;
(B) the Mandatory Redemption Price and the amount of accrued
interest to be paid;
(C) the name and address of the Paying Agent;
-3-
(D) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Mandatory Redemption Price plus
accrued interest, if any; and
(E) that, unless the Company defaults 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 Mandatory
Redemption Price plus accrued interest upon surrender to the Paying
Agent of the Securities redeemed.
(iv) On or before 10:00 a.m. New York Time on the Redemption Date for
a Special Mandatory Redemption, the Company shall deposit with the Paying
Agent an amount of funds such that on the Redemption Date the Paying Agent
shall have sufficient immediately available funds to pay the Mandatory
Redemption Price plus accrued and unpaid interest to the Redemption Date
for all outstanding Securities. The Paying Agent or Trustee shall promptly
return to the Company any amount so deposited which is not required for
that purpose.
A failure by the Company to make a Special Mandatory Redemption when
required to do so shall constitute an Event of Default under the Indenture.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days notice by mail, in whole or in part, at the option of the Company
at any time at a redemption price equal to the greater of (i) 100% of the
principal amount of such Securities plus accrued and unpaid interest to the
redemption date or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (exclusive of interest accrued to the
date of redemption) discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 25 basis points plus accrued and unpaid interest thereon to the
redemption date.
"Treasury Rate" means, with respect to any redemption date, (i) the yield,
under the heading which represents the average for the immediately preceding
week, appearing in the most recently published statistical release designated
"H.15(519)" or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months before
or after the Remaining Life, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue shall be determined and
the Treasury Rate shall be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date. The Treasury Rate shall be calculated on the third
Business Day preceding the redemption date.
-4-
"Business Day" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are open for
business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term ("Remaining Life") of the Securities to be redeemed that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of four Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Independent Investment Banker obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such Quotations.
"Independent Investment Banker" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated or if such firm is unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of national
standing appointed by the Trustee.
"Reference Treasury Dealer" means (i) each of Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Morgan Stanley & Co. Incorporated and two other primary
U.S. Government securities dealers in New York City (each, a "Primary Treasury
Dealer") and their respective successors, provided, however, that if any of the
foregoing shall cease to be a Primary Treasury Dealer, the Company will
substitute therefor another Primary Treasury Dealer and (ii) any other Primary
Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such
redemption date.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture. The Indenture provides that the Trustee or Holders of
at least 25% in principal amount of the Securities of the applicable series may
declare the applicable series to be immediately due and payable. However, upon
certain conditions such declarations may be annulled and past defaults may be
waived.
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 under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities affected thereby,
voting as a single class (which may include the Securities), at the time
outstanding. The Indenture also contains
-5-
provisions permitting the Company and the Trustee to amend certain provisions of
the Indenture without the consent of the Holders of the Securities.
No reference herein to the Indenture or the Officers' Certificate and no
provision of this Note or of the Indenture or the Officers' Certificate shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the times,
places and rates, and in the coin or currency, herein prescribed.
Any Certificated Security constituting a "Restricted Security" (as defined
in Rule 144(a)(3) under the Securities Act) delivered in exchange for a
beneficial interest in a Global Security as described in the Indenture shall,
except as otherwise provided below, bear the legend shown on the front of this
certificate (the "Private Placement Legend"). The owner of a beneficial interest
in a Global Security may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under the
Indenture or the Securities.
The following provisions shall apply with respect to the registration of
any proposed transfer of a Security constituting a Restricted Security to any
Institutional Accredited Investor which is not a qualified institutional buyer
(as defined in Rule 144A) ("QIB") or to any Non-U.S. Person (as defined in
Regulation S): (i) the Securities Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such Security bears
the Private Placement Legend, if (x) the requested transfer is after the later
of the second anniversary of the date of issuance of the Security and the last
date on which the Company or any Affiliate of the Company was the owner of this
Security or (y) (A) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Securities Registrar a certificate substantially
in the form of Appendix II hereto or (B) in the case of a transfer to a Non-U.S.
Person during the 40-day restricted period, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of Appendix
III hereto; and (ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security, upon receipt by the Securities
Registrar of (x) the certificate, if any, required by clause (i) above and (y)
written instructions given in accordance with the Depository's and the
Securities Registrar's procedures, whereupon (I) the Securities Registrar shall
reflect on its books and records the date and (if the transfer does not involve
a transfer of outstanding Certificated Securities) a decrease in the principal
amount of the applicable Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
(II) the Company shall execute and the Trustee shall authenticate and deliver
one or more Certificated Securities of like tenor and amount.
The following provisions shall apply with respect to the registration of
any proposed transfer of a Security constituting a Restricted Security to a QIB
(excluding transfers to Non-U.S. Persons): (i) the Securities Registrar shall
register the transfer if such transfer is being made by a proposed transferor
who has checked the box provided for on the form of Security stating, or has
otherwise advised the Company and the Securities Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of Security
stating, or has otherwise advised the Company and the Securities Registrar in
writing, that it is purchasing the Security for its own account or an account
with respect to which it
-9-
exercises sole investment discretion and that it and any such account is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; (ii) if the proposed
transferor is an Agent Member, and the Securities to be transferred consist of
Certificated Securities which after transfer are to be evidenced by an interest
in a Global Security, upon receipt by the Securities Registrar of written
instructions given in accordance with the Depository's and the Securities
Registrar's procedures, the Securities Registrar shall reflect on its books and
records the date and an increase in the principal amount of the applicable
Global Security in an amount equal to the principal amount of the Certificated
Securities to be transferred, and the Trustee shall cancel the Certificated
Securities so transferred; and (iii) if the Security to be transferred consists
of an interest in the U.S. Global Security, and the proposed transferee is an
Agent Member, the Securities Registrar shall reflect such transfer on its books
and records.
Upon the transfer, exchange or replacement of Securities not bearing the
Private Placement Legend, the Securities Registrar shall deliver Securities that
do not bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Securities bearing the Private Placement Legend, the Registrar
shall deliver only Securities that bear the Private Placement Legend unless (i)
the requested transfer is after the second anniversary of the date of issuance
of the Securities, or (ii) there is delivered to the Securities Registrar an
opinion of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the securities
Act.
By its acceptance of a Security bearing the Private Placement Legend, the
Holder acknowledges the restrictions on transfer set forth on this Security and
agrees that it will transfer such Security only as provided in this Security.
The Securities Registrar shall retain copies of all letters, notices and
other written communications received. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time during the Securities Registrar's normal
business hours upon the giving of reasonable written notice to the Securities
Registrar in connection with any transfer of the Securities, the Trustee, the
Securities Registrar and the Company shall be entitled to receive, shall be
under no duty to inquire into, may conclusively presume the correctness of, and
shall be fully protected in relying upon the certificates, opinions and other
information referred to herein (or in the forms provided herein, attached hereto
or to the Securities, or otherwise) received from any holder and any transferee
to receive such Security and any other facts and circumstances related to such
transfer.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Securities Register upon
surrender of this Security for registration of transfer at the agency of the
Company provided for that purpose duly endorsed by, or accompanied by a written
instrument of transfer in substantially the form accompanying this Security duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or
-10-
more new Securities, of authorized denominations and for the same aggregate
principal amount, 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, the Securities are exchangeable for a like aggregate principal
amount of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
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
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to the Indenture in which case such transfer taxes or similar
governmental charges shall be paid by the Company).
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name this Note 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.
All terms used in this Security which are defined in the Indenture or the
Officers' Certificate shall have the meanings assigned to them therein.
Customary abbreviations may be used in the name of a Security holder or any
assignee, such as: TEN COM (= tenants in common), TEN ENT(= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (Uniform Gifts to Minors
Act).
The Company will furnish to any Holder of record of a Security, upon
written request, without charge, a copy of the Indenture. Requests may be made
to: Vice President and Assistant Treasurer, Burlington Resources Finance
Company, c/o Burlington Resources Canada Ltd., Suite 3700, 250-6th Avenue, S.W.,
Calgary, Alberta T2P 3H7, telephone: (403) 260-8000.
GUARANTEE
The undersigned Guarantor (capitalized terms used herein have the meanings
given such terms in the Indenture referred to in the Security upon which this
notation is endorsed) hereby unconditionally guarantees (such guarantee being
referred to herein as the "Guarantee") the due and punctual payment of the
principal of, premium, if any, and interest on the 5.60% Notes due December 1,
2006 (the "Securities") which this Guarantee accompanies, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest on the Securities, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee, all in accordance with the terms set forth in Article Two of the
Guarantee Agreement.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Securities upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York.
This Guarantee is subject to release upon the terms set forth in the
Guarantee Agreement.
-2-
BURLINGTON RESOURCES INC.
By: /s/ Daniel D. Hawk
-----------------------------------------------
Name: Daniel D. Hawk
Title:
APPENDIX I
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfers) unto
Insert Taxpayer Identification No.
__________________________________
___________________________________________
___________________________________________
(Please print or typewrite name and address including zip code of assignee)
___________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
___________________________________________
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
November 16, 2003, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
Check one
[ ] (a) this Security is being transferred in compliance with
the exemption from registration under the Securities Act of
1933, as amended, provided by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in
accordance with (a) above and documents are being furnished
which comply with the conditions of transfer set forth in this
Security and the indenture.
If none of the foregoing boxes is checked, the Trustee or other Securities
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein shall have been satisfied.
-2-
Date:
----------------------------- ------------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of the within-mentioned instrument
in every particular, without
alteration or any change whatsoever.
Signature Guarantee:_____________________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Securities Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Securities
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
-------------- ----------------------------------------------------
NOTICE: To be executed by an authorized signatory
APPENDIX II
Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
----------------------------------------
------------, ------
Burlington Resources Finance Company
c/o Citibank, N.A.
111 Wall Street
Citibank Agency & Trust Services
14th Floor
New York, New York 10005
Attention: Corporate Trust Division
In connection with our proposed purchase of $ aggregate principal amount of
the 5.60% Notes due December 1, 2006 (the "Securities") of Burlington Resources
Finance Company (the "Company"), we confirm that:
1. We understand that the Securities have not been registered under the
Securities Act of 1933 (the "Securities Act"), and, unless so registered, may
not be sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing
Securities to offer, sell or otherwise transfer such Securities prior to (x) the
date which is two years (or such shorter period of time as permitted by Rule
144(k) under the Securities Act) after the later of the date of original issue
of the Securities and the last date on which the Company or any affiliate of the
Company was the owner of the Securities or any predecessor of the Securities and
(y) such later date, if any, as may be required by any subsequent change in
applicable law (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to an effective registration statement under the
Securities Act, (c) for so long as the Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a "qualified institutional buyer" under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the, transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales to non-U.S. persons that occur outside the U.S. within the
meaning of Regulation S under the Securities Act, or (e) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject, in each of the foregoing cases, to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and to compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply after the Resale Restriction Termination Date. If any resale or other
transfer of the Securities is proposed to be made to an "accredited investor" as
defined
-2-
in Rule 501(a)(1), (2) , (3) or (7) under the Securities Act ("Accredited
Investor") pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Trustee, which shall provide,
among other things, that the transferee is an Accredited Investor and that it is
acquiring such Securities for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the Company
and the Trustee reserve the right prior to any offer, sale or other transfer of
the Securities before the Resale Restriction Termination Date pursuant to clause
(d) or (e) above to require the delivery of an opinion of counsel, certificates
and/or other information satisfactory to the Company and the Trustee.
2. We are an Accredited Investor or a QIB purchasing Securities for our own
account or for the account of one or more Accredited Investors, and we are
acquiring the Securities for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act or the securities law of any state of the U.S. and we have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Securities, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment in the Securities for an indefinite period.
3. We are acquiring the Securities purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion and we and any such account are (a) a QIB, aware that the sale is
being made in reliance on Rule 144A under the Securities Act, (b) an Accredited
Investor, or (c) a person other than a U.S. person ("foreign purchasers") ,
which term shall include dealers or other professional fiduciaries in the U.S.
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust) in offshore transactions meeting the requirements of Rule 903
of Regulation S under the Securities Act.
4. We have received a copy of the Offering Memorandum and acknowledge that
we have had access to such financial and other information, and have been
afforded the opportunity to ask such questions of representatives of the Company
and receive answers thereto, as we deem necessary in order to verify the
information contained in the Offering Memorandum.
We understand that the Trustee will not be required to accept for
registration of transfer any Securities acquired by us, except upon presentation
of evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that the
certificates representing the Securities purchased by us will bear a legend
reflecting the substance of this paragraph. We further agree to provide to any
person acquiring any of the Securities from us a notice advising such person
that transfers of such Securities are restricted as stated herein and that
certificates representing such Securities will bear a legend to that effect.
We represent that you, the Company, the Trustee and others are entitled to
rely upon the truth and accuracy of our acknowledgments, representations and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our acknowledgments, representations or agreements herein cease to be
accurate and complete. You are also irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
-3-
We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as fiduciary agent.
As used herein, the terms, "offshore transaction," "U.S." and "U.S. person"
have the respective meanings given to them in Regulation S under the Securities
Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:
-----------------------------------------------
Date:
--------------------------------------------
Upon transfer, the Securities would be registered in the name of the new
beneficial owner as follows:
Name:
---------------------------------------------
Address:
------------------------------------------
APPENDIX III
Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
---------------------------
----------------------, ----
Burlington Resources Finance Company
c/o Citibank, N.A.
111 Wall Street
Citibank Agency & Trust Services
14th Floor
New York, New York 10005
Attention: Corporate Trust Division
Re: Burlington Resources Finance Company (the "Company")
5.60% Notes due December 1, 2006 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount of the
Securities, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended, and,
accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the facilities
of a designated off-shore securities market and neither we nor any person
acting on our behalf knows that the transaction has been pre-arranged with
a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933, as amended.
-2-
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
-3-
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------------------------------
Authorized Signature
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED EITHER IN THE INDENTURE OR HEREIN AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN. 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 DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC
TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF
DTC OR A NOMINEE OF SUCH SUCCESSOR.
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT OF 1933 OR (B) IT IS A NON-U.S. PERSON
OUTSIDE THE UNITED STATES ACQUIRING THE SECURITY IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF
1933, (C) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OF 1933, (D) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY
-2-
RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
OR (G) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME
OF SUCH TRANSFER, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(G)
ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE (2)(G) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE).
UNLESS THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (2)(G) ABOVE, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE,
AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933. THIS LEGEND WILL BE
REMOVED UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY
PURSUANT TO CLAUSE (2)(G) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL
ISSUANCE OF THE SECURITY EVIDENCED HEREBY, AS USED HEREIN, THE TERMS "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
In the event Rule 144(k) as promulgated under the Securities Act is amended
to shorten the two-year period under Rule 144(k), then the references in the
restrictive legends set forth above to "TWO YEARS" will be deemed to refer to
such shorter period, from and after receipt by the Trustee of certain opinions
and certificates. However, such changes will not be made if they are otherwise
prohibited by, or would otherwise cause a violation of, the federal securities
laws applicable at the time. As soon as practicable after we know of the
effectiveness of any such amendment to shorten the two-year period under Rule
144(k), unless such changes would otherwise be prohibited by, or would otherwise
cause a violation of, the federal securities laws applicable at the time, the
Company shall provide to the trustee certain certificates and opinions as to the
effectiveness of such amendment and the effectiveness of such change to the
restrictive legends and transfer restrictions.
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF THE REGISTRATION
RIGHTS AGREEMENT (THE "REGISTRATION RIGHTS AGREEMENT") AMONG THE COMPANY AND THE
INITIAL PURCHASERS, DATED AS OF THE DATE
-3-
HEREOF, PURSUANT TO WHICH, SUBJECT TO THE TERMS AND CONDITIONS THEREOF, THE
COMPANY IS OBLIGATED TO CONSUMMATE THE EXCHANGE OFFER PURSUANT TO WHICH THE
HOLDER OF THIS SECURITY SHALL HAVE THE RIGHT TO EXCHANGE THIS SECURITY FOR 6.50%
NOTES DUE DECEMBER 1, 2011, IN LIKE PRINCIPAL AMOUNT AS PROVIDED THEREIN. THE
SECURITIES ISSUED UNDER THE EXCHANGE OFFER WILL BE EVIDENCE OF THE SAME
CONTINUING INDEBTEDNESS AS UNDER THE SECURITIES ISSUED ON THE ORIGINAL ISSUE
DATE. UNDER NO CIRCUMSTANCES WILL THE SURRENDER OF THE SECURITIES ISSUED ON THE
ORIGINAL ISSUE DATE AND THE ISSUANCE OF THE SECURITIES UNDER THE EXCHANGE OFFER
CONSTITUTE NEW INDEBTEDNESS OR OBLIGATE THE COMPANY TO REPAY THE PRINCIPAL
AMOUNT OF THE SECURITIES ISSUED ON THE ORIGINAL ISSUE DATE. THE SECURITIES
ISSUED ON THE ORIGINAL ISSUE DATE AND THE SECURITIES ISSUED UNDER THE EXCHANGE
OFFER ARE TOGETHER REFERRED TO HEREIN AS THE "SECURITIES." THE SECURITIES ISSUED
ON THE ORIGINAL ISSUE DATE RANK PARI PASSU IN RIGHT OF PAYMENT WITH THE
SECURITIES ISSUED UNDER THE EXCHANGE OFFER.
UNDER CERTAIN CIRCUMSTANCES, THE COMPANY WILL BE OBLIGATED TO PAY CERTAIN
LIQUIDATED DAMAGES TO THE HOLDERS, AS MORE PARTICULARLY SET FORTH IN SECTION 2.5
OF THE REGISTRATION RIGHTS AGREEMENT. THE TERMS OF THE REGISTRATION RIGHTS
AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE AND THE COMPANY SHALL BE
OBLIGATED TO PROVIDE A COPY OF SUCH REGISTRATION RIGHTS AGREEMENT TO THE
TRUSTEE.
Cusip No. 12201PAE6
BURLINGTON RESOURCES FINANCE COMPANY
6.50% NOTES
DUE DECEMBER 1, 2011
Rate of Interest Maturity Date Original Issue Date
---------------- ------------- -------------------
6.50% December 1, 2011 November 16, 2001
No. 001 $500,000,000
Burlington Resources Finance Company, an unlimited liability company
organized and existing under the laws of Nova Scotia, Canada (herein called the
"Company"), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of $500,000,000 on the Maturity Date shown
above, and to pay interest thereon, at the annual rate of interest shown above,
from the Original Issue Date shown above or from the most recent Interest
Payment Date (as hereinafter defined) to which interest has been paid or duly
provided for, payable semiannually on June 1 and December 1 of each year and at
maturity (an "Interest Payment Date"), commencing on the first such date after
the Original Issue Date shown above. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date or within five days thereafter will, as provided in the
Indenture, be paid to the person in whose name this Security is registered at
the close of business on the Record Date for any such Interest Payment Date,
which shall be the May 15 or November 15 next preceding the applicable Interest
Payment Date (whether or not a Business Day). Any such interest not so
punctually paid or duly provided for, and any interest payable on such defaulted
interest (to the extent lawful), will forthwith cease to be payable to the
Holder on such Record Date and shall be paid to the person in whose name this
Security is registered at the close of business on a special record date for the
payment of such defaulted interest to be fixed by the Trustee, notice of which
shall be given to Holders of Securities not less than ten days prior to such
special record date. Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office of the Trustee, 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 any installment of interest may be made
by check mailed to the address of the person entitled thereto as such address
shall appear in the Securities Register or by wire transfer to an account
maintained by the person entitled thereto as specified in the Securities
Register, provided that such person shall have given the Trustee appropriate and
timely written wire instructions.
-2-
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.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
-3-
IN WITNESS WHEREOF, Burlington Resources Finance Company has caused this
instrument to be executed in its corporate name by the facsimile signature of
its duly authorized officers and has caused a facsimile of its corporate seal to
be affixed hereunto or imprinted hereon.
BURLINGTON RESOURCES FINANCE COMPANY
By: /s/ Daniel D. Hawk
-----------------------------------------------
Name: Daniel D. Hawk
Title: Vice President and Treasurer
ATTEST:
By: /s/ Anne Vaughan
--------------------------------------------
Name: Anne Vaughan
Title: Assistant Secretary
DATED: November 16, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 6.50% Notes due December 1, 2011 issued pursuant to the
within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By: /s/ Pat DeFelice
------------------------------------------
Authorized Signatory
Dated: November 16, 2001
BURLINGTON RESOURCES FINANCE COMPANY
6.50% NOTES
DUE DECEMBER 1, 2011
This Security is one of a duly authorized issue of Securities of the
Company (which term includes any successor Person under the Indenture herein
referred to) designated as its 6.50% Notes due December 1, 2011, issued or to be
issued pursuant to an Indenture, dated as of February 12, 2001 (the
"Indenture"), between the Company and Citibank N.A., as Trustee (the "Trustee,"
which term includes any successor trustee under the Indenture). The Securities
shall be fully and unconditionally guaranteed by Burlington Resources Inc., a
Delaware corporation (the "Guarantor"), pursuant to a Guarantee Agreement dated
as of February 12, 2001 by the Guarantor in favor of the holders of Securities.
The terms of this Security include those stated in the Indenture and in the
Officers' Certificate issued thereunder and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as in effect on the date of the
Indenture. Reference is hereby made to the Indenture and the applicable
officers' certificate issued thereunder for a statement of the respective
rights, limitation of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are a series of Securities issued or to be issued by the
Company under the Indenture, and this Series is unlimited in aggregate principal
amount. As of the Original Issue Date, $500,000,000 principal amount of Notes of
this Series will be issued. The Indenture provides that the Securities of the
Company referred to therein ("Securities"), may be issued in one or more Series,
which different Series may be issued in such aggregate principal amounts and on
such terms (including, but not limited to, terms relating to interest rate or
rates, provisions for determining such interest rate or rates and adjustments
thereto, maturity, redemption (optional and mandatory), covenants and Events of
Default) as may be provided in the officers' certificates or supplemental
indentures relating to the several Series.
The Company acknowledges that:
(a) each of it, Burlington Resources Canada Corporation and Burlington
Acquisition Corporation is, directly or indirectly, a subsidiary of
Burlington Resources Inc., the guarantor of the Securities;
(b) Burlington Acquisition Corporation has made an offer (the "CHEL
Offer") to purchase all of the issued and outstanding common shares of
Canadian Hunter Exploration Ltd. (the "CHEL Common Shares"); and
(c) Burlington Resources Canada Corporation has agreed to make a loan
to Burlington Acquisition Corporation, in an amount at least equal to the
amount of the Securities, (the "BAC Loan") as soon as Burlington
Acquisition Corporation is obligated to pay the purchase price of
two-thirds of the CHEL Common Shares (the "Threshold Amount of CHEL Common
Shares").
-2-
The Company shall transfer all of the proceeds from the issuance of the
Securities, or a like amount (the "Proceeds"), to Burlington Resources Canada
Corporation in exchange for one or more promissory notes (the "BRCC Promissory
Notes"), on or before February 28, 2002, to enable Burlington Resources Canada
Corporation to honor its obligation to make the BAC Loan, provided that the
Company shall not transfer any amount of the Proceeds to Burlington Resources
Canada Corporation, in exchange for BRCC Promissory Notes, until Burlington
Acquisition Corporation is obligated to pay the purchase price of, and to
acquire, the Threshold Amount of CHEL Common Shares.
If
(a) Burlington Acquisition Corporation has not become obligated to pay
the purchase price of the Threshold Amount of CHEL Common Shares on or
before February 28, 2002, or
(b) the CHEL Offer has expired on or before February 28, 2002,
then the Company shall not have complied with its obligation, under the
Securities and the Indenture, to transfer the Proceeds to Burlington Resources
Canada Corporation, in exchange for the BRCC Promissory Notes, and such failure
to transfer the Proceeds shall constitute, and hereinafter be referred to, as an
Event of Failure.
Upon the occurrence of an Event of Failure:
(ii) The Company shall notify the Trustee in writing on the next
succeeding Business Day after an Event of Failure that the Company will
redeem the Securities on a specified Redemption Date no later than 10 days
after the occurrence of an Event of Failure at a redemption price in cash
equal to 100.25% of the principal amount of the Securities (the "Mandatory
Redemption Price") plus the accrued and unpaid interest to the Redemption
Date (the "Special Mandatory Redemption").
(iii) Within two Business Days after an Event of Failure, the Company
shall mail a notice (the "Mandatory Redemption Notice") by first class
mail, postage prepaid, to each Holder at its registered address. The
Mandatory Redemption Notice shall be mailed at least 8 days (or the minimum
if legally required by the Depositary Trust Company) but not more than 10
days before the Redemption Date. At the Company's request, the Trustee
shall give the Mandatory Redemption Notice in the Company's name and at the
Company's expense. The Mandatory Redemption Notice shall identify the
Securities to be redeemed (including the CUSIP number(s)) and shall state:
(A) the Redemption Date;
(B) the Mandatory Redemption Price and the amount of accrued
interest to be paid;
(C) the name and address of the Paying Agent;
-3-
(D) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Mandatory Redemption Price plus
accrued interest, if any; and
(E) that, unless the Company defaults 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 Mandatory
Redemption Price plus accrued interest upon surrender to the Paying
Agent of the Securities redeemed.
(iv) On or before 10:00 a.m. New York Time on the Redemption Date for
a Special Mandatory Redemption, the Company shall deposit with the Paying
Agent an amount of funds such that on the Redemption Date the Paying Agent
shall have sufficient immediately available funds to pay the Mandatory
Redemption Price plus accrued and unpaid interest to the Redemption Date
for all outstanding Securities. The Paying Agent or Trustee shall promptly
return to the Company any amount so deposited which is not required for
that purpose.
A failure by the Company to make a Special Mandatory Redemption when
required to do so shall constitute an Event of Default under the Indenture.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days notice by mail, in whole or in part, at the option of the Company
at any time at a redemption price equal to the greater of (i) 100% of the
principal amount of such Securities plus accrued and unpaid interest to the
redemption date or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (exclusive of interest accrued to the
date of redemption) discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 25 basis points plus accrued and unpaid interest thereon to the
redemption date.
"Treasury Rate" means, with respect to any redemption date, (i) the yield,
under the heading which represents the average for the immediately preceding
week, appearing in the most recently published statistical release designated
"H.15(519)" or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months before
or after the Remaining Life, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue shall be determined and
the Treasury Rate shall be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date. The Treasury Rate shall be calculated on the third
Business Day preceding the redemption date.
-4-
"Business Day" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are open for
business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term ("Remaining Life") of the Securities to be redeemed that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of four Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Independent Investment Banker obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such Quotations.
"Independent Investment Banker" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated or if such firm is unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of national
standing appointed by the Trustee.
"Reference Treasury Dealer" means (i) each of Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Morgan Stanley & Co. Incorporated and two other primary
U.S. Government securities dealers in New York City (each, a "Primary Treasury
Dealer") and their respective successors, provided, however, that if any of the
foregoing shall cease to be a Primary Treasury Dealer, the Company will
substitute therefor another Primary Treasury Dealer and (ii) any other Primary
Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such
redemption date.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture. The Indenture provides that the Trustee or Holders of
at least 25% in principal amount of the Securities of the applicable series may
declare the applicable series to be immediately due and payable. However, upon
certain conditions such declarations may be annulled and past defaults may be
waived.
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 under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities affected thereby,
voting as a single class (which may include the Securities), at the time
outstanding. The Indenture also contains
-5-
provisions permitting the Company and the Trustee to amend certain provisions of
the Indenture without the consent of the Holders of the Securities.
No reference herein to the Indenture or the Officers' Certificate and no
provision of this Note or of the Indenture or the Officers' Certificate shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the times,
places and rates, and in the coin or currency, herein prescribed.
Any Certificated Security constituting a "Restricted Security" (as defined
in Rule 144(a)(3) under the Securities Act) delivered in exchange for a
beneficial interest in a Global Security as described in the Indenture shall,
except as otherwise provided below, bear the legend shown on the front of this
certificate (the "Private Placement Legend"). The owner of a beneficial interest
in a Global Security may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under the
Indenture or the Securities.
The following provisions shall apply with respect to the registration of
any proposed transfer of a Security constituting a Restricted Security to any
Institutional Accredited Investor which is not a qualified institutional buyer
(as defined in Rule 144A) ("QIB") or to any Non-U.S. Person (as defined in
Regulation S): (i) the Securities Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such Security bears
the Private Placement Legend, if (x) the requested transfer is after the later
of the second anniversary of the date of issuance of the Security and the last
date on which the Company or any Affiliate of the Company was the owner of this
Security or (y) (A) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Securities Registrar a certificate substantially
in the form of Appendix II hereto or (B) in the case of a transfer to a Non-U.S.
Person during the 40-day restricted period, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of Appendix
III hereto; and (ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security, upon receipt by the Securities
Registrar of (x) the certificate, if any, required by clause (i) above and (y)
written instructions given in accordance with the Depository's and the
Securities Registrar's procedures, whereupon (I) the Securities Registrar shall
reflect on its books and records the date and (if the transfer does not involve
a transfer of outstanding Certificated Securities) a decrease in the principal
amount of the applicable Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
(II) the Company shall execute and the Trustee shall authenticate and deliver
one or more Certificated Securities of like tenor and amount.
The following provisions shall apply with respect to the registration of
any proposed transfer of a Security constituting a Restricted Security to a QIB
(excluding transfers to Non-U.S. Persons): (i) the Securities Registrar shall
register the transfer if such transfer is being made by a proposed transferor
who has checked the box provided for on the form of Security stating, or has
otherwise advised the Company and the Securities Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of Security
stating, or has otherwise advised the Company and the Securities Registrar in
writing, that it is purchasing the Security for its own account or an account
with respect to which it
-6-
exercises sole investment discretion and that it and any such account is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; (ii) if the proposed
transferor is an Agent Member, and the Securities to be transferred consist of
Certificated Securities which after transfer are to be evidenced by an interest
in a Global Security, upon receipt by the Securities Registrar of written
instructions given in accordance with the Depository's and the Securities
Registrar's procedures, the Securities Registrar shall reflect on its books and
records the date and an increase in the principal amount of the applicable
Global Security in an amount equal to the principal amount of the Certificated
Securities to be transferred, and the Trustee shall cancel the Certificated
Securities so transferred; and (iii) if the Security to be transferred consists
of an interest in the U.S. Global Security, and the proposed transferee is an
Agent Member, the Securities Registrar shall reflect such transfer on its books
and records.
Upon the transfer, exchange or replacement of Securities not bearing the
Private Placement Legend, the Securities Registrar shall deliver Securities that
do not bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Securities bearing the Private Placement Legend, the Registrar
shall deliver only Securities that bear the Private Placement Legend unless (i)
the requested transfer is after the second anniversary of the date of issuance
of the Securities, or (ii) there is delivered to the Securities Registrar an
opinion of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the securities
Act.
By its acceptance of a Security bearing the Private Placement Legend, the
Holder acknowledges the restrictions on transfer set forth on this Security and
agrees that it will transfer such Security only as provided in this Security.
The Securities Registrar shall retain copies of all letters, notices and
other written communications received. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time during the Securities Registrar's normal
business hours upon the giving of reasonable written notice to the Securities
Registrar in connection with any transfer of the Securities, the Trustee, the
Securities Registrar and the Company shall be entitled to receive, shall be
under no duty to inquire into, may conclusively presume the correctness of, and
shall be fully protected in relying upon the certificates, opinions and other
information referred to herein (or in the forms provided herein, attached hereto
or to the Securities, or otherwise) received from any holder and any transferee
to receive such Security and any other facts and circumstances related to such
transfer.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Securities Register upon
surrender of this Security for registration of transfer at the agency of the
Company provided for that purpose duly endorsed by, or accompanied by a written
instrument of transfer in substantially the form accompanying this Security duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or
-7-
more new Securities, of authorized denominations and for the same aggregate
principal amount, 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, the Securities are exchangeable for a like aggregate principal
amount of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
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
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to the Indenture in which case such transfer taxes or similar
governmental charges shall be paid by the Company).
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name this Note 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.
All terms used in this Security which are defined in the Indenture or the
Officers' Certificate shall have the meanings assigned to them therein.
Customary abbreviations may be used in the name of a Security holder or any
assignee, such as: TEN COM (= tenants in common), TEN ENT(= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (Uniform Gifts to Minors
Act).
The Company will furnish to any Holder of record of a Security, upon
written request, without charge, a copy of the Indenture. Requests may be made
to: Vice President and Assistant Treasurer, Burlington Resources Finance
Company, c/o Burlington Resources Canada Ltd., Suite 3700, 250-6th Avenue, S.W.,
Calgary, Alberta T2P 3H7, telephone: (403) 260-8000.
GUARANTEE
The undersigned Guarantor (capitalized terms used herein have the meanings
given such terms in the Indenture referred to in the Security upon which this
notation is endorsed) hereby unconditionally guarantees (such guarantee being
referred to herein as the "Guarantee") the due and punctual payment of the
principal of, premium, if any, and interest on the 6.50% Notes due December 1,
2011 (the "Securities") which this Guarantee accompanies, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest on the Securities, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee, all in accordance with the terms set forth in Article Two of the
Guarantee Agreement.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Securities upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York.
This Guarantee is subject to release upon the terms set forth in the
Guarantee Agreement.
-2-
BURLINGTON RESOURCES INC.
By: /s/ Daniel D. Hawk
--------------------------------------------------
Name: Daniel D. Hawk
Title:
APPENDIX I
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfers) unto
Insert Taxpayer Identification No.
_________________________________
______________________________________________________
(Please print or typewrite name and address including zip code of assignee)
______________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
______________________________________________________
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
November 16, 2003, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
Check one
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the conditions of
transfer set forth in this Security and the indenture.
If none of the foregoing boxes is checked, the Trustee or other Securities
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein shall have been satisfied.
-2-
Date:
----------------------------- --------------------------------------
NOTICE: The signature to this assign-
ment must correspond with the name as
written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
_____________________________________
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Securities Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Securities
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
----------- ------------------------------------------------------
NOTICE: To be executed by an authorized signatory
APPENDIX II
Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
----------------------------------------
------------, ------
Burlington Resources Finance Company
c/o Citibank, N.A.
111 Wall Street
Citibank Agency & Trust Services
14th Floor
New York, New York 10005
Attention: Corporate Trust Division
In connection with our proposed purchase of $ aggregate principal amount of
the 6.50% Notes due December 1, 2011 (the "Securities") of Burlington Resources
Finance Company (the "Company"), we confirm that:
1. We understand that the Securities have not been registered under the
Securities Act of 1933 (the "Securities Act"), and, unless so registered, may
not be sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing
Securities to offer, sell or otherwise transfer such Securities prior to (x) the
date which is two years (or such shorter period of time as permitted by Rule
144(k) under the Securities Act) after the later of the date of original issue
of the Securities and the last date on which the Company or any affiliate of the
Company was the owner of the Securities or any predecessor of the Securities and
(y) such later date, if any, as may be required by any subsequent change in
applicable law (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to an effective registration statement under the
Securities Act, (c) for so long as the Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a "qualified institutional buyer" under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the, transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales to non-U.S. persons that occur outside the U.S. within the
meaning of Regulation S under the Securities Act, or (e) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject, in each of the foregoing cases, to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and to compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply after the Resale Restriction Termination Date. If any resale or other
transfer of the Securities is proposed to be made to an "accredited investor" as
defined
-2-
in Rule 501(a)(1), (2) , (3) or (7) under the Securities Act ("Accredited
Investor") pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Trustee, which shall provide,
among other things, that the transferee is an Accredited Investor and that it is
acquiring such Securities for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the Company
and the Trustee reserve the right prior to any offer, sale or other transfer of
the Securities before the Resale Restriction Termination Date pursuant to clause
(d) or (e) above to require the delivery of an opinion of counsel, certificates
and/or other information satisfactory to the Company and the Trustee.
2. We are an Accredited Investor or a QIB purchasing Securities for our own
account or for the account of one or more Accredited Investors, and we are
acquiring the Securities for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act or the securities law of any state of the U.S. and we have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Securities, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment in the Securities for an indefinite period.
3. We are acquiring the Securities purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion and we and any such account are (a) a QIB, aware that the sale is
being made in reliance on Rule 144A under the Securities Act, (b) an Accredited
Investor, or (c) a person other than a U.S. person ("foreign purchasers") ,
which term shall include dealers or other professional fiduciaries in the U.S.
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust) in offshore transactions meeting the requirements of Rule 903
of Regulation S under the Securities Act.
4. We have received a copy of the Offering Memorandum and acknowledge that
we have had access to such financial and other information, and have been
afforded the opportunity to ask such questions of representatives of the Company
and receive answers thereto, as we deem necessary in order to verify the
information contained in the Offering Memorandum.
We understand that the Trustee will not be required to accept for
registration of transfer any Securities acquired by us, except upon presentation
of evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that the
certificates representing the Securities purchased by us will bear a legend
reflecting the substance of this paragraph. We further agree to provide to any
person acquiring any of the Securities from us a notice advising such person
that transfers of such Securities are restricted as stated herein and that
certificates representing such Securities will bear a legend to that effect.
We represent that you, the Company, the Trustee and others are entitled to
rely upon the truth and accuracy of our acknowledgments, representations and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our acknowledgments, representations or agreements herein cease to be
accurate and complete. You are also irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
-3-
We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as fiduciary agent.
As used herein, the terms, "offshore transaction," "U.S." and "U.S. person"
have the respective meanings given to them in Regulation S under the Securities
Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:
----------------------------------------------
Date:
--------------------------------------------
Upon transfer, the Securities would be registered in the name of the new
beneficial owner as follows:
Name:
-------------------------------------------
Address:
----------------------------------------
APPENDIX III
Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
---------------------------
----------------------, ----
Burlington Resources Finance Company
c/o Citibank, N.A.
111 Wall Street
Citibank Agency & Trust Services
14th Floor
New York, New York 10005
Attention: Corporate Trust Division
Re: Burlington Resources Finance Company (the "Company")
6.50% Notes due December 1, 2011 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount of the
Securities, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended, and,
accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the facilities
of a designated off-shore securities market and neither we nor any person
acting on our behalf knows that the transaction has been pre-arranged with
a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933, as amended.
-2-
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
-3-
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------------------------------
Authorized Signature
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED EITHER IN THE INDENTURE OR HEREIN AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN. 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 DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC
TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF
DTC OR A NOMINEE OF SUCH SUCCESSOR.
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT OF 1933 OR (B) IT IS A NON-U.S. PERSON
OUTSIDE THE UNITED STATES ACQUIRING THE SECURITY IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF
1933, (C) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OF 1933, (D) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY
-2-
RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
OR (G) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME
OF SUCH TRANSFER, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(G)
ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE (2)(G) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE).
UNLESS THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (2)(G) ABOVE, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE,
AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933. THIS LEGEND WILL BE
REMOVED UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY
PURSUANT TO CLAUSE (2)(G) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL
ISSUANCE OF THE SECURITY EVIDENCED HEREBY, AS USED HEREIN, THE TERMS "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
In the event Rule 144(k) as promulgated under the Securities Act is amended
to shorten the two-year period under Rule 144(k), then the references in the
restrictive legends set forth above to "TWO YEARS" will be deemed to refer to
such shorter period, from and after receipt by the Trustee of certain opinions
and certificates. However, such changes will not be made if they are otherwise
prohibited by, or would otherwise cause a violation of, the federal securities
laws applicable at the time. As soon as practicable after we know of the
effectiveness of any such amendment to shorten the two-year period under Rule
144(k), unless such changes would otherwise be prohibited by, or would otherwise
cause a violation of, the federal securities laws applicable at the time, the
Company shall provide to the trustee certain certificates and opinions as to the
effectiveness of such amendment and the effectiveness of such change to the
restrictive legends and transfer restrictions.
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF THE REGISTRATION
RIGHTS AGREEMENT (THE "REGISTRATION RIGHTS AGREEMENT") AMONG THE COMPANY AND THE
INITIAL PURCHASERS, DATED AS OF THE DATE
-3-
HEREOF, PURSUANT TO WHICH, SUBJECT TO THE TERMS AND CONDITIONS THEREOF, THE
COMPANY IS OBLIGATED TO CONSUMMATE THE EXCHANGE OFFER PURSUANT TO WHICH THE
HOLDER OF THIS SECURITY SHALL HAVE THE RIGHT TO EXCHANGE THIS SECURITY FOR 7.40%
NOTES DUE DECEMBER 1, 2031, IN LIKE PRINCIPAL AMOUNT AS PROVIDED THEREIN. THE
SECURITIES ISSUED UNDER THE EXCHANGE OFFER WILL BE EVIDENCE OF THE SAME
CONTINUING INDEBTEDNESS AS UNDER THE SECURITIES ISSUED ON THE ORIGINAL ISSUE
DATE. UNDER NO CIRCUMSTANCES WILL THE SURRENDER OF THE SECURITIES ISSUED ON THE
ORIGINAL ISSUE DATE AND THE ISSUANCE OF THE SECURITIES UNDER THE EXCHANGE OFFER
CONSTITUTE NEW INDEBTEDNESS OR OBLIGATE THE COMPANY TO REPAY THE PRINCIPAL
AMOUNT OF THE SECURITIES ISSUED ON THE ORIGINAL ISSUE DATE. THE SECURITIES
ISSUED ON THE ORIGINAL ISSUE DATE AND THE SECURITIES ISSUED UNDER THE EXCHANGE
OFFER ARE TOGETHER REFERRED TO HEREIN AS THE "SECURITIES." THE SECURITIES ISSUED
ON THE ORIGINAL ISSUE DATE RANK PARI PASSU IN RIGHT OF PAYMENT WITH THE
SECURITIES ISSUED UNDER THE EXCHANGE OFFER.
UNDER CERTAIN CIRCUMSTANCES, THE COMPANY WILL BE OBLIGATED TO PAY CERTAIN
LIQUIDATED DAMAGES TO THE HOLDERS, AS MORE PARTICULARLY SET FORTH IN SECTION 2.5
OF THE REGISTRATION RIGHTS AGREEMENT. THE TERMS OF THE REGISTRATION RIGHTS
AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE AND THE COMPANY SHALL BE
OBLIGATED TO PROVIDE A COPY OF SUCH REGISTRATION RIGHTS AGREEMENT TO THE
TRUSTEE.
Cusip No. 12201PAF3
BURLINGTON RESOURCES FINANCE COMPANY
7.40% NOTES
DUE DECEMBER 1, 2031
Rate of Interest Maturity Date Original Issue Date
---------------- ------------- -------------------
7.40% December 1, 2031 November 16, 2001
No. 001 $500,000,000
Burlington Resources Finance Company, an unlimited liability company
organized and existing under the laws of Nova Scotia, Canada (herein called the
"Company"), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of $500,000,000 on the Maturity Date shown
above, and to pay interest thereon, at the annual rate of interest shown above,
from the Original Issue Date shown above or from the most recent Interest
Payment Date (as hereinafter defined) to which interest has been paid or duly
provided for, payable semiannually on June 1 and December 1 of each year and at
maturity (an "Interest Payment Date"), commencing on the first such date after
the Original Issue Date shown above. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date or within five days thereafter will, as provided in the
Indenture, be paid to the person in whose name this Security is registered at
the close of business on the Record Date for any such Interest Payment Date,
which shall be the May 15 or November 15 next preceding the applicable Interest
Payment Date (whether or not a Business Day). Any such interest not so
punctually paid or duly provided for, and any interest payable on such defaulted
interest (to the extent lawful), will forthwith cease to be payable to the
Holder on such Record Date and shall be paid to the person in whose name this
Security is registered at the close of business on a special record date for the
payment of such defaulted interest to be fixed by the Trustee, notice of which
shall be given to Holders of Securities not less than ten days prior to such
special record date. Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office of the Trustee, 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 any installment of interest may be made
by check mailed to the address of the person entitled thereto as such address
shall appear in the Securities Register or by wire transfer to an account
maintained by the person entitled thereto as specified in the Securities
Register, provided that such person shall have given the Trustee appropriate and
timely written wire instructions.
-2-
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.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
-3-
IN WITNESS WHEREOF, Burlington Resources Finance Company has caused this
instrument to be executed in its corporate name by the facsimile signature of
its duly authorized officers and has caused a facsimile of its corporate seal to
be affixed hereunto or imprinted hereon.
BURLINGTON RESOURCES FINANCE COMPANY
By: /s/ Daniel D. Hawk
---------------------------------------------
Name: Daniel D. Hawk
Title: Vice President and Treasurer
ATTEST:
By: /s/ Anne Vaughan
--------------------------------------------
Name: Anne Vaughan
Title: Assistant Secretary
DATED: November 16, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 7.40% Notes due December 1, 2031 issued pursuant to the
within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By: /s/ Pat DeFelice
----------------------------------------
Authorized Signatory
Dated: November 16, 2001
BURLINGTON RESOURCES FINANCE COMPANY
7.40% NOTES
DUE DECEMBER 1, 2031
This Security is one of a duly authorized issue of Securities of the
Company (which term includes any successor Person under the Indenture herein
referred to) designated as its 7.40% Notes due December 1, 2031, issued or to be
issued pursuant to an Indenture, dated as of February 12, 2001 (the
"Indenture"), between the Company and Citibank N.A., as Trustee (the "Trustee,"
which term includes any successor trustee under the Indenture). The Securities
shall be fully and unconditionally guaranteed by Burlington Resources Inc., a
Delaware corporation (the "Guarantor"), pursuant to a Guarantee Agreement dated
as of February 12, 2001 by the Guarantor in favor of the holders of Securities.
The terms of this Security include those stated in the Indenture and in the
Officers' Certificate issued thereunder and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as in effect on the date of the
Indenture. Reference is hereby made to the Indenture and the applicable
officers' certificate issued thereunder for a statement of the respective
rights, limitation of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are a series of Securities issued or to be issued by the
Company under the Indenture, and this Series is unlimited in aggregate principal
amount. As of the Original Issue Date, $500,000,000 principal amount of Notes of
this Series will be issued. The Indenture provides that the Securities of the
Company referred to therein ("Securities"), may be issued in one or more Series,
which different Series may be issued in such aggregate principal amounts and on
such terms (including, but not limited to, terms relating to interest rate or
rates, provisions for determining such interest rate or rates and adjustments
thereto, maturity, redemption (optional and mandatory), covenants and Events of
Default) as may be provided in the officers' certificates or supplemental
indentures relating to the several Series.
The Company acknowledges that:
(a) each of it, Burlington Resources Canada Corporation and Burlington
Acquisition Corporation is, directly or indirectly, a subsidiary of
Burlington Resources Inc., the guarantor of the Securities;
(b) Burlington Acquisition Corporation has made an offer (the "CHEL
Offer") to purchase all of the issued and outstanding common shares of
Canadian Hunter Exploration Ltd. (the "CHEL Common Shares"); and
(c) Burlington Resources Canada Corporation has agreed to make a loan
to Burlington Acquisition Corporation, in an amount at least equal to the
amount of the Securities, (the "BAC Loan") as soon as Burlington
Acquisition Corporation is obligated to pay the purchase price of
two-thirds of the CHEL Common Shares (the "Threshold Amount of CHEL Common
Shares").
-2-
The Company shall transfer all of the proceeds from the issuance of the
Securities, or a like amount (the "Proceeds"), to Burlington Resources Canada
Corporation in exchange for one or more promissory notes (the "BRCC Promissory
Notes"), on or before February 28, 2002, to enable Burlington Resources Canada
Corporation to honor its obligation to make the BAC Loan, provided that the
Company shall not transfer any amount of the Proceeds to Burlington Resources
Canada Corporation, in exchange for BRCC Promissory Notes, until Burlington
Acquisition Corporation is obligated to pay the purchase price of, and to
acquire, the Threshold Amount of CHEL Common Shares.
If
(a) Burlington Acquisition Corporation has not become obligated to pay
the purchase price of the Threshold Amount of CHEL Common Shares on or
before February 28, 2002, or
(b) the CHEL Offer has expired on or before February 28, 2002,
then the Company shall not have complied with its obligation, under the
Securities and the Indenture, to transfer the Proceeds to Burlington Resources
Canada Corporation, in exchange for the BRCC Promissory Notes, and such failure
to transfer the Proceeds shall constitute, and hereinafter be referred to, as an
Event of Failure.
Upon the occurrence of an Event of Failure:
(ii) The Company shall notify the Trustee in writing on the next
succeeding Business Day after an Event of Failure that the Company will
redeem the Securities on a specified Redemption Date no later than 10 days
after the occurrence of an Event of Failure at a redemption price in cash
equal to 100.25% of the principal amount of the Securities (the "Mandatory
Redemption Price") plus the accrued and unpaid interest to the Redemption
Date (the "Special Mandatory Redemption").
(iii) Within two Business Days after an Event of Failure, the Company
shall mail a notice (the "Mandatory Redemption Notice") by first class
mail, postage prepaid, to each Holder at its registered address. The
Mandatory Redemption Notice shall be mailed at least 8 days (or the minimum
if legally required by the Depositary Trust Company) but not more than 10
days before the Redemption Date. At the Company's request, the Trustee
shall give the Mandatory Redemption Notice in the Company's name and at the
Company's expense. The Mandatory Redemption Notice shall identify the
Securities to be redeemed (including the CUSIP number(s)) and shall state:
(A) the Redemption Date;
(B) the Mandatory Redemption Price and the amount of accrued
interest to be paid;
(C) the name and address of the Paying Agent;
-3-
(D) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Mandatory Redemption Price plus
accrued interest, if any; and
(E) that, unless the Company defaults 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 Mandatory
Redemption Price plus accrued interest upon surrender to the Paying
Agent of the Securities redeemed.
(iv) On or before 10:00 a.m. New York Time on the Redemption Date for
a Special Mandatory Redemption, the Company shall deposit with the Paying
Agent an amount of funds such that on the Redemption Date the Paying Agent
shall have sufficient immediately available funds to pay the Mandatory
Redemption Price plus accrued and unpaid interest to the Redemption Date
for all outstanding Securities. The Paying Agent or Trustee shall promptly
return to the Company any amount so deposited which is not required for
that purpose.
A failure by the Company to make a Special Mandatory Redemption when
required to do so shall constitute an Event of Default under the Indenture.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days notice by mail, in whole or in part, at the option of the Company
at any time at a redemption price equal to the greater of (i) 100% of the
principal amount of such Securities plus accrued and unpaid interest to the
redemption date or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (exclusive of interest accrued to the
date of redemption) discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 25 basis points plus accrued and unpaid interest thereon to the
redemption date.
"Treasury Rate" means, with respect to any redemption date, (i) the yield,
under the heading which represents the average for the immediately preceding
week, appearing in the most recently published statistical release designated
"H.15(519)" or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months before
or after the Remaining Life, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue shall be determined and
the Treasury Rate shall be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date. The Treasury Rate shall be calculated on the third
Business Day preceding the redemption date.
-4-
"Business Day" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are open for
business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term ("Remaining Life") of the Securities to be redeemed that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of four Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Independent Investment Banker obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such Quotations.
"Independent Investment Banker" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated or if such firm is unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of national
standing appointed by the Trustee.
"Reference Treasury Dealer" means (i) each of Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Morgan Stanley & Co. Incorporated and two other primary
U.S. Government securities dealers in New York City (each, a "Primary Treasury
Dealer") and their respective successors, provided, however, that if any of the
foregoing shall cease to be a Primary Treasury Dealer, the Company will
substitute therefor another Primary Treasury Dealer and (ii) any other Primary
Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such
redemption date.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture. The Indenture provides that the Trustee or Holders of
at least 25% in principal amount of the Securities of the applicable series may
declare the applicable series to be immediately due and payable. However, upon
certain conditions such declarations may be annulled and past defaults may be
waived.
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 under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities affected thereby,
voting as a single class (which may include the Securities), at the time
outstanding. The Indenture also contains
-5-
provisions permitting the Company and the Trustee to amend certain provisions of
the Indenture without the consent of the Holders of the Securities.
No reference herein to the Indenture or the Officers' Certificate and no
provision of this Note or of the Indenture or the Officers' Certificate shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the times,
places and rates, and in the coin or currency, herein prescribed.
Any Certificated Security constituting a "Restricted Security" (as defined
in Rule 144(a)(3) under the Securities Act) delivered in exchange for a
beneficial interest in a Global Security as described in the Indenture shall,
except as otherwise provided below, bear the legend shown on the front of this
certificate (the "Private Placement Legend"). The owner of a beneficial interest
in a Global Security may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under the
Indenture or the Securities.
The following provisions shall apply with respect to the registration of
any proposed transfer of a Security constituting a Restricted Security to any
Institutional Accredited Investor which is not a qualified institutional buyer
(as defined in Rule 144A) ("QIB") or to any Non-U.S. Person (as defined in
Regulation S): (i) the Securities Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such Security bears
the Private Placement Legend, if (x) the requested transfer is after the later
of the second anniversary of the date of issuance of the Security and the last
date on which the Company or any Affiliate of the Company was the owner of this
Security or (y) (A) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Securities Registrar a certificate substantially
in the form of Appendix II hereto or (B) in the case of a transfer to a Non-U.S.
Person during the 40-day restricted period, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of Appendix
III hereto; and (ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security, upon receipt by the Securities
Registrar of (x) the certificate, if any, required by clause (i) above and (y)
written instructions given in accordance with the Depository's and the
Securities Registrar's procedures, whereupon (I) the Securities Registrar shall
reflect on its books and records the date and (if the transfer does not involve
a transfer of outstanding Certificated Securities) a decrease in the principal
amount of the applicable Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
(II) the Company shall execute and the Trustee shall authenticate and deliver
one or more Certificated Securities of like tenor and amount.
The following provisions shall apply with respect to the registration of
any proposed transfer of a Security constituting a Restricted Security to a QIB
(excluding transfers to Non-U.S. Persons): (i) the Securities Registrar shall
register the transfer if such transfer is being made by a proposed transferor
who has checked the box provided for on the form of Security stating, or has
otherwise advised the Company and the Securities Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of Security
stating, or has otherwise advised the Company and the Securities Registrar in
writing, that it is purchasing the Security for its own account or an account
with respect to which it
-6-
exercises sole investment discretion and that it and any such account is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; (ii) if the proposed
transferor is an Agent Member, and the Securities to be transferred consist of
Certificated Securities which after transfer are to be evidenced by an interest
in a Global Security, upon receipt by the Securities Registrar of written
instructions given in accordance with the Depository's and the Securities
Registrar's procedures, the Securities Registrar shall reflect on its books and
records the date and an increase in the principal amount of the applicable
Global Security in an amount equal to the principal amount of the Certificated
Securities to be transferred, and the Trustee shall cancel the Certificated
Securities so transferred; and (iii) if the Security to be transferred consists
of an interest in the U.S. Global Security, and the proposed transferee is an
Agent Member, the Securities Registrar shall reflect such transfer on its books
and records.
Upon the transfer, exchange or replacement of Securities not bearing the
Private Placement Legend, the Securities Registrar shall deliver Securities that
do not bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Securities bearing the Private Placement Legend, the Registrar
shall deliver only Securities that bear the Private Placement Legend unless (i)
the requested transfer is after the second anniversary of the date of issuance
of the Securities, or (ii) there is delivered to the Securities Registrar an
opinion of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the securities
Act.
By its acceptance of a Security bearing the Private Placement Legend, the
Holder acknowledges the restrictions on transfer set forth on this Security and
agrees that it will transfer such Security only as provided in this Security.
The Securities Registrar shall retain copies of all letters, notices and
other written communications received. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time during the Securities Registrar's normal
business hours upon the giving of reasonable written notice to the Securities
Registrar in connection with any transfer of the Securities, the Trustee, the
Securities Registrar and the Company shall be entitled to receive, shall be
under no duty to inquire into, may conclusively presume the correctness of, and
shall be fully protected in relying upon the certificates, opinions and other
information referred to herein (or in the forms provided herein, attached hereto
or to the Securities, or otherwise) received from any holder and any transferee
to receive such Security and any other facts and circumstances related to such
transfer.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Securities Register upon
surrender of this Security for registration of transfer at the agency of the
Company provided for that purpose duly endorsed by, or accompanied by a written
instrument of transfer in substantially the form accompanying this Security duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or
-7-
more new Securities, of authorized denominations and for the same aggregate
principal amount, 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, the Securities are exchangeable for a like aggregate principal
amount of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
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
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to the Indenture in which case such transfer taxes or similar
governmental charges shall be paid by the Company).
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name this Note 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.
All terms used in this Security which are defined in the Indenture or the
Officers' Certificate shall have the meanings assigned to them therein.
Customary abbreviations may be used in the name of a Security holder or any
assignee, such as: TEN COM (= tenants in common), TEN ENT(= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (Uniform Gifts to Minors
Act).
The Company will furnish to any Holder of record of a Security, upon
written request, without charge, a copy of the Indenture. Requests may be made
to: Vice President and Assistant Treasurer, Burlington Resources Finance
Company, c/o Burlington Resources Canada Ltd., Suite 3700, 250-6th Avenue, S.W.,
Calgary, Alberta T2P 3H7, telephone: (403) 260-8000.
GUARANTEE
The undersigned Guarantor (capitalized terms used herein have the meanings
given such terms in the Indenture referred to in the Security upon which this
notation is endorsed) hereby unconditionally guarantees (such guarantee being
referred to herein as the "Guarantee") the due and punctual payment of the
principal of, premium, if any, and interest on the 7.40% Notes due December 1,
2031 (the "Securities") which this Guarantee accompanies, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest on the Securities, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee, all in accordance with the terms set forth in Article Two of the
Guarantee Agreement.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Securities upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York.
This Guarantee is subject to release upon the terms set forth in the
Guarantee Agreement.
-2-
BURLINGTON RESOURCES INC.
By: /s/ Daniel D. Hawk
--------------------------------------------
Name: Daniel D. Hawk
Title:
APPENDIX I
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfers) unto
Insert Taxpayer Identification No.
_______________________________________
_______________________________________
(Please print or typewrite name and address including zip code of assignee)
_______________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
______________________________________
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
November 16, 2003, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
Check one
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the conditions of
transfer set forth in this Security and the indenture.
If none of the foregoing boxes is checked, the Trustee or other Securities
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein shall have been satisfied.
-2-
Date:
----------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
_____________________________________
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Securities Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Securities
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
-------------- -----------------------------------------------
NOTICE: To be executed by an authorized signatory
APPENDIX II
Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
----------------------------------------
------------, ------
Burlington Resources Finance Company
c/o Citibank, N.A.
111 Wall Street
Citibank Agency & Trust Services
14th Floor
New York, New York 10005
Attention: Corporate Trust Division
In connection with our proposed purchase of $ aggregate principal amount of
the 7.40% Notes due December 1, 2031 (the "Securities") of Burlington Resources
Finance Company (the "Company"), we confirm that:
1. We understand that the Securities have not been registered under the
Securities Act of 1933 (the "Securities Act"), and, unless so registered, may
not be sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing
Securities to offer, sell or otherwise transfer such Securities prior to (x) the
date which is two years (or such shorter period of time as permitted by Rule
144(k) under the Securities Act) after the later of the date of original issue
of the Securities and the last date on which the Company or any affiliate of the
Company was the owner of the Securities or any predecessor of the Securities and
(y) such later date, if any, as may be required by any subsequent change in
applicable law (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to an effective registration statement under the
Securities Act, (c) for so long as the Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a "qualified institutional buyer" under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the, transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales to non-U.S. persons that occur outside the U.S. within the
meaning of Regulation S under the Securities Act, or (e) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject, in each of the foregoing cases, to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and to compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply after the Resale Restriction Termination Date. If any resale or other
transfer of the Securities is proposed to be made to an "accredited investor" as
defined
-2-
in Rule 501(a)(1), (2) , (3) or (7) under the Securities Act ("Accredited
Investor") pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Trustee, which shall provide,
among other things, that the transferee is an Accredited Investor and that it is
acquiring such Securities for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the Company
and the Trustee reserve the right prior to any offer, sale or other transfer of
the Securities before the Resale Restriction Termination Date pursuant to clause
(d) or (e) above to require the delivery of an opinion of counsel, certificates
and/or other information satisfactory to the Company and the Trustee.
2. We are an Accredited Investor or a QIB purchasing Securities for our own
account or for the account of one or more Accredited Investors, and we are
acquiring the Securities for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act or the securities law of any state of the U.S. and we have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Securities, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment in the Securities for an indefinite period.
3. We are acquiring the Securities purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion and we and any such account are (a) a QIB, aware that the sale is
being made in reliance on Rule 144A under the Securities Act, (b) an Accredited
Investor, or (c) a person other than a U.S. person ("foreign purchasers") ,
which term shall include dealers or other professional fiduciaries in the U.S.
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust) in offshore transactions meeting the requirements of Rule 903
of Regulation S under the Securities Act.
4. We have received a copy of the Offering Memorandum and acknowledge that
we have had access to such financial and other information, and have been
afforded the opportunity to ask such questions of representatives of the Company
and receive answers thereto, as we deem necessary in order to verify the
information contained in the Offering Memorandum.
We understand that the Trustee will not be required to accept for
registration of transfer any Securities acquired by us, except upon presentation
of evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that the
certificates representing the Securities purchased by us will bear a legend
reflecting the substance of this paragraph. We further agree to provide to any
person acquiring any of the Securities from us a notice advising such person
that transfers of such Securities are restricted as stated herein and that
certificates representing such Securities will bear a legend to that effect.
We represent that you, the Company, the Trustee and others are entitled to
rely upon the truth and accuracy of our acknowledgments, representations and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our acknowledgments, representations or agreements herein cease to be
accurate and complete. You are also irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
-3-
We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as fiduciary agent.
As used herein, the terms, "offshore transaction," "U.S." and "U.S. person"
have the respective meanings given to them in Regulation S under the Securities
Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:
--------------------------------------------
Date:
------------------------------------------
Upon transfer, the Securities would be registered in the name of the new
beneficial owner as follows:
Name:
-----------------------------------------
Address:
--------------------------------------
APPENDIX III
Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
---------------------------
----------------------, ----
Burlington Resources Finance Company
c/o Citibank, N.A.
111 Wall Street
Citibank Agency & Trust Services
14th Floor
New York, New York 10005
Attention: Corporate Trust Division
Re: Burlington Resources Finance Company (the "Company")
7.40% Notes due December 1, 2031 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount of the
Securities, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended, and,
accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the facilities
of a designated off-shore securities market and neither we nor any person
acting on our behalf knows that the transaction has been pre-arranged with
a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933, as amended.
-2-
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
-3-
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------------------------
Authorized Signature