101
Section 10.15. NO WAIVER OF SUBORDINATION PROVISIONS.
Without in any way limiting the generality of Section 10.9 of this
Indenture, the holders of Senior Debt or Guarantor Senior Debt, as the case
may be, may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders, without incurring responsibility to the
Holders and without impairing or releasing the subordination provided in this
Article Ten or the obligations hereunder of the Holders to the holders of
Senior Debt or Guarantor Senior Debt, as the case may be, do any one or more
of the following: (a) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Senior Debt or Guarantor Senior
Debt, as the case may be, or any instrument evidencing the same or any
agreement under which Senior Debt or Guarantor Senior Debt, as the case may
be, is outstanding or secured; (b) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Debt or
Guarantor Senior Debt, as the case may be; (c) release any Person liable in
any manner for the collection of Senior Debt or Guarantor Senior Debt, as the
case may be; and (d) exercise or refrain from exercising any rights against
the Company and each Subsidiary Guarantor and any other Person.
102
ARTICLE 11
THE SUBSIDIARY GUARANTEES
Section 11.1. THE SUBSIDIARY GUARANTEES.
103
Each of the Subsidiary Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the
Securities or the obligations of the Company hereunder or thereunder, that:
(a) the principal of and premium and interest, on the Securities shall be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and
interest on premium and interest, on the Securities, if any, if lawful, and
all other obligations of the Company to the Holders or the Trustee hereunder
or thereunder shall be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and (b) in case of any extension of time
of payment or renewal of any Securities or any of such other obligations,
that the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason,
the Subsidiary Guarantors shall be jointly and severally obligated to pay the
same immediately. The Subsidiary Guarantors hereby agree that their
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence
of any action to enforce the same, any waiver or consent by any Holder with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of
a guarantor. Each of the Subsidiary Guarantors hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, ay right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and
covenant that this Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Securities and this
Indenture. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or the Subsidiary Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting in relation
to either the Company or the Subsidiary Guarantors, any amount paid by either
to the Trustee or such Holder, this Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
of the Subsidiary Guarantors agrees that it shall not be entitled to any
right of subrogation in relation to the Holders of Securities in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each of the Subsidiary Guarantors further agrees that, as
between the Subsidiary Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 for the purposes of this
Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (y) in the event of any declaration of
104
acceleration of such obligations as provided in Article 6, such obligations
(whether or not due and payable) shall forthwith become due and payable by
the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The
Subsidiary Guarantors shall have the right to seek contribution from any
Subsidiary Guarantor not paying so long as the exercise of such right does
not impair the rights of the Holders under the Subsidiary Guarantees.
Section 11.2. SUBORDINATION OF SUBSIDIARY GUARANTEES.
The obligations of each of the Subsidiary Guarantors under its
Subsidiary Guarantee pursuant to this Article 11 shall be junior and
subordinated to the Guarantor Senior Debt of the Subsidiary Guarantor
pursuant to Article 10 hereof. For the purposes of the foregoing sentence,
the Trustee and the Holders shall have the right to receive and/or retain
payments or distributions by or on behalf of any of the Subsidiary Guarantors
only at such times as they may receive and/or retain payments in respect of
the Securities pursuant to this Indenture, including Article 10 hereof.
Section 11.3. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON
CERTAIN TERMS.
No Subsidiary Guarantor may consolidate with or merge with or into
(whether or not such Subsidiary Guarantor is the Surviving Person), another
Person other than the Company or another Subsidiary Guarantor, whether or not
affiliated with such Subsidiary Guarantor, unless:
(a) subject to the provisions of Section 11.4 hereof, the Person
formed by or surviving any such consolidation or merger (if other than such
Subsidiary Guarantor) assumes all the obligations of such Subsidiary
Guarantor pursuant to a supplemental indenture in form reasonably
satisfactory to the Trustee in respect of the Securities, this Indenture
and such Subsidiary Guarantor's Guarantee;
(b) immediately after giving effect to such transaction, no Default
or Event of Default exists; and
(c) such transaction does not violate any of Sections 4.3, 4.7, 4.8,
4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.18 and 4.19.
Notwithstanding the foregoing, none of the Subsidiary Guarantors shall be
permitted to consolidate with or merge with or into (whether or not such
Subsidiary Guarantor is the surviving Person), another corporation, Person or
entity pursuant to the preceding sentence if such consolidation or merger
would not be permitted by Section 5.1 hereof.
In case of any such consolidation or merger and upon the assumption
by the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory
105
in form to the Trustee, of the Subsidiary Guarantee endorsed upon the
Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by such Subsidiary Guarantor,
such successor corporation shall succeed to and be substituted for such
Subsidiary Guarantor with the same effect as if it had been named herein as a
Subsidiary Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Subsidiary Guarantees to be endorsed upon all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee. All the Subsidiary Guarantees so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Subsidiary Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Subsidiary
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, nothing contained
in this Indenture or in any of the Securities shall prevent any consolidation
or merger of any Subsidiary Guarantor with or into the Company or another
Subsidiary Guarantor, or shall prevent any sale or conveyance of the property
of any Subsidiary Guarantor as an entirety or substantially as an entirety to
the Company or any Subsidiary Guarantor.
Section 11.4. RELEASES OF SUBSIDIARY GUARANTEES.
In the event of a sale or other disposition of all or substantially
all of the assets of any Subsidiary Guarantor or a sale or other disposition
of all of the capital stock of any Subsidiary Guarantor, to any corporation
or other Person (including an Unrestricted Subsidiary) by way of merger,
consolidation, or otherwise, in a transaction that does not violate any of
the covenants of this Indenture, then such Subsidiary Guarantor (in the event
of a sale or other disposition, by way of such merger, consolidation or
otherwise, of all the capital stock of such Subsidiary Guarantor) shall be
released and relieved of any obligations under its Subsidiary Guarantee and
such acquiring corporation or other Person (in the event of a sale or other
disposition of all or substantially all of the assets of such Subsidiary
Guarantor), if other than a Subsidiary Guarantor, shall have no obligation to
assume or otherwise become liable under such Subsidiary Guarantee; PROVIDED
that the Net Proceeds of such sale or other disposition are applied in
accordance with Section 4.10 hereof. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect
that such sale or other disposition was made by the Company in accordance
with the provisions of this Indenture, including without limitation Section
4.10, the Trustee shall execute any documents reasonably required in order to
evidence the release of any Subsidiary Guarantor from its obligations under
its Subsidiary Guarantee.
Any Subsidiary Guarantor not released from its obligations under
its Subsidiary Guarantee shall remain liable for the full amount of principal
of and interest on the
106
Securities and for the other obligations of such Subsidiary Guarantor under
this Indenture as provided in this Article 11.
Any Subsidiary Guarantor that is designated an Unrestricted
Subsidiary in accordance with the terms of this Indenture shall, upon such
designation, be released from and relieved of its obligations under its
Subsidiary Guarantee and any Unrestricted Subsidiary whose obligation as such
is revoked and any newly created or newly acquired Subsidiary that is or
becomes a Restricted Subsidiary shall be required to execute a Subsidiary
Guarantee in accordance with the terms of this Indenture.
Section 11.5. LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY.
For purposes hereof, each Subsidiary Guarantor's liability shall be
that amount from time to time equal to the aggregate liability of such
Subsidiary Guarantor thereunder, but shall be limited to the lesser of (i)
the aggregate amount of the Obligations of the Company under the Securities
and this Indenture and (ii) the amount, if any, which would not have (A)
rendered such Subsidiary Guarantor "INSOLVENT" (as such term is defined in
the federal Bankruptcy Law and in the Debtor and Creditor Law of the State of
New York) or (B) left it with unreasonably small capital at the time its
Subsidiary Guarantee of the Securities was entered into, after giving effect
to the incurrence of existing Indebtedness immediately prior to such time;
PROVIDED that, it shall be a presumption in any lawsuit or other proceeding
in which such Subsidiary Guarantor is a party that the amount guaranteed
pursuant to its Subsidiary Guarantee is the amount set forth in clause (i)
above unless any creditor, or representative of creditors of such Subsidiary
Guarantor, or debtor in possession or trustee in bankruptcy of such
Subsidiary Guarantor, otherwise proves in such a lawsuit that the aggregate
liability of such Subsidiary Guarantor is limited to the amount set forth in
clause (ii). In making any determination as to the solvency or sufficiency
of capital of a Subsidiary Guarantor in accordance with the previous
sentence, the right of such Subsidiary Guarantor to contribution from other
Subsidiary Guarantors and any other rights such Subsidiary Guarantor may
have, contractual or otherwise, shall be taken into account.
Section 11.6. "TRUSTEE" TO INCLUDE PAYING AGENT.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"TRUSTEE" as used in Article 10 and this Article 11 shall in such case
(unless the context shall otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully and for all intents
and purposes as if such Paying Agent were named in Article 10 and this
Article 11 in place of the Trustee.
107
ARTICLE 12
MISCELLANEOUS
Section 12.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall
control. If any provisions of this Indenture modifies or excludes any
provision of the TIA that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
Section 12.2. NOTICES.
Any notice or communication by the Company or the Subsidiary
Guarantors or the Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing
next day delivery, to the others' address:
If to the Company or any Subsidiary Guarantor:
Continental Resources, Inc.
302 North Independence, 3rd Floor
P.O. Box 1032
Enid, OK 73702
Telecopier No.: (580) 548-5281
Attention: Harold Hamm and Roger Clement
With a copies to:
McAfee & Taft A Professional Corporation
Tenth Floor, Two Leadership Square
211 North Robinson
Oklahoma City, Oklahoma 73102-7103
Telecopier No.: (405) 235-0439
Attention: Theodore Elam
If to the Trustee:
United States Trust Company of New York
114 West 47th Street, 25th Floor
New York, NY 10036
Telecopier No.: (212) 852-1626
Attention: Corporate Trust Administration
Ref: Continental Resources, Inc.
The Company or any Subsidiary Guarantor or the Trustee, by notice
to the others may designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time
108
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged,
if by telecopy; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery
(except that a notice of change of address and any notice to the Trustee
shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also
be so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company or any Subsidiary Guarantor mails a notice or
communication to Holders, it shall mail a copy to the Trustee and each Agent
at the same time.
Section 12.3. COMMUNICATION BY HOLDERS OF SECURITIES WITH OTHER
HOLDERS OF SECURITIES.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Subsidiary Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
Section 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Subsidiary
Guarantor to the Trustee to take any action under this Indenture, the Company
or such Subsidiary Guarantor, as the case may be, shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.5 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.5 hereof) stating that, in the opinion of such counsel, all
such conditions
109
precedent have been complied with.
Section 12.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall comply with
the provisions of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with; PROVIDED, that with
respect to matters of fact an Opinion of Counsel may rely on an Officer's
Certificate and/or certificates of public officials.
Section 12.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.7. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of the
Company or any Subsidiary, as such, shall have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Securities, by accepting a Security, waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Securities. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is
the view of the Commission that such a waiver is against public policy.
110
Section 12.8. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES.
Section 12.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or their respective Subsidiaries or of
any other Person. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture and the Subsidiary Guarantees.
Section 12.10. SUCCESSORS.
All agreements of the Company and each Subsidiary Guarantor in this
Indenture, the Securities and the Subsidiary Guarantees shall bind its
respective successors. All agreements of the Trustee in this Indenture shall
bind its successors.
Section 12.11. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
SIGNATURES
Dated as of
July 24, 1998
CONTINENTAL RESOURCES, INC.
Attest: By: /s/ RANDY MOEDER
Name: Randy Moeder
/s/ CHRISTINE ROBERTS Title: Senior Vice President,
General Counsel and Secretary
CONTINENTAL CRUDE CO.
Attest: By: /s/ JEFF WHITE
Name: Jeff White
/s/ RANDY MOEDER Title: President
CONTINENTAL GAS, INC.
Attest: By: /s/ RANDY MOEDER
Name: Randy Moeder
/s/ CHRISTINE ROBERTS Title: President
UNITED STATES TRUST COMPANY OF NEW YORK
Attest: By: /s/ LOUIS P. YOUNG
Name: Louis P. Young
/s/ M. CIESMELEWSKI Title: Vice President
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
SERIES A NOTE
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK,
NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY IS SUBORDINATED TO SENIOR INDEBTEDNESS, AS DEFINED IN
THE INDENTURE (AS DEFINED HEREIN), AND THE OBLIGATIONS OF EACH SUBSIDIARY
GUARANTOR UNDER THE SUBSIDIARY GUARANTEE CONTAINED IN THE INDENTURE ARE
SUBORDINATED TO GUARANTOR SENIOR INDEBTEDNESS, AS DEFINED IN THE INDENTURE,
OF SUCH SUBSIDIARY GUARANTOR.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL
A-1
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
[Regulation S Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, 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 ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON
NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT ("REGULATION S"), (2) BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S, (E) TO AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE
A-2
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND IN
THE CASE OF THE FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY
ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS
DEFINED IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL
OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
A-3
CONTINENTAL RESOURCES, INC.
10 1/4% Senior Subordinated Notes due 2008
No. 1 $150,000,000
CUSIP Number: 212013AA4
Continental Resources, Inc., an Oklahoma corporation, promises to
pay to Cede & Co., or registered assigns, the principal sum of One Hundred
Fifty Million Dollars on August 1, 2008.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Additional provisions of this Security are set forth on the other
side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and a
facsimile of its corporate seal to be affixed hereto and imprinted hereon.
Dated: ____________, 1998
CONTINENTAL RESOURCES, INC.
By ______________________________________
Name:
Title:
By ______________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee, certifies that this is
one of the Securities referred to in the
within-mentioned Indenture:
By _____________________________________
Authorized Signatory
Dated: ____________, 1998
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(Back of Security)
10 1/4% Senior Subordinated Notes due 2008
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Continental Resources, Inc., an Oklahoma corporation
(the "COMPANY"), promises to pay interest on the principal amount of this
Security at the rate of 10 1/4% per annum, which interest shall be payable in
cash semiannually in arrears on each February 1 and August 1, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"INTEREST PAYMENT DATE"); PROVIDED that the first Interest Payment Date shall
be February 1, 1999. Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of original issuance. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. On each Interest Payment Date the Company
will pay interest to the Person who is the Holder of record of this Security
as of the close of business on the January 15 or July 15 immediately
preceding such Interest Payment Date, even if this Security is cancelled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
Principal, premium, if any, and interest on this Security will be payable at
the office or agency of the Company maintained for such purpose within The
City and State of New York or, in the event the Securities do not remain in
book-entry form, at the option of the Company, payment of interest may be
made by check mailed to the Holder of this Security at its address set forth
in the register of Holders of Securities; PROVIDED that all payments with
respect to the Global Securities and Definitive Securities having an
aggregate principal amount of $5.0 million or more the Holders of which have
given wire transfer instructions to the Company at least 10 Business Days
prior to the applicable payment date will be required to be made by wire
transfer of immediately available funds to the accounts specified by the
Holders thereof. Such payment shall be 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.
3. PAYING AGENT AND REGISTRAR. Initially, United States Trust
Company of New York, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any Subsidiary Guarantor or any
other of the Company's Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Securities under an Indenture
dated as of July 24, 1998 ("INDENTURE") among
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the Company, the Subsidiary Guarantors and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended
(15 U.S. Code Sections 77aaa-77bbbb). The Securities are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Securities are general unsecured obligations of
the Company equal in an aggregate principal amount to $150,000,000 and will
mature on August 1, 2008.
The Securities are general unsecured senior subordinated obligations
of the Company limited to $150,000,000 million aggregate principal amount
(subject to Section 2.7 of the Indenture). The aggregate principal amount of
notes which may be authenticated and delivered under the Indenture, including
the Securities, is limited to $300.0 million (subject to Section 2.7 of the
Indenture). This Security is one of the Initial Securities referred to in
the Indenture. The Securities include the Initial Securities and any
Exchange Securities issued in exchange for the Initial Securities pursuant to
the Indenture and the Registration Rights Agreement. The Initial Securities
and the Exchange Securities are treated as a single class of securities under
the Indenture. The Indenture imposes certain limitations on the incurrence
of Indebtedness by the Company and its Restricted Subsidiaries, the payment
of dividends and other distributions on the Capital Stock of the Company and
its Restricted Subsidiaries, the purchase or redemption of Capital Stock of
the Company and Capital Stock of such Restricted Subsidiaries, certain
purchases or redemptions of Subordinated Indebtedness, the sale or transfer
of assets and Capital Stock of Restricted Subsidiaries, the issuance or sale
of Capital Stock of Restricted Subsidiaries, the Investments of the Company
and its Subsidiaries and transactions with Affiliates. In addition, the
Indenture limits the ability of the Company and its Restricted Subsidiaries
to restrict distributions and dividends from Restricted Subsidiaries.
To guarantee the due and punctual payment of the principal, premium,
if any, and interest on the Securities and all other amounts payable by the
Company under the Indenture and the Securities when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according
to the terms of the Securities and the Indenture, the Subsidiary Guarantors
have unconditionally guaranteed (and future Subsidiary Guarantors, together
with the Subsidiary Guarantors, will unconditionally guarantee), jointly and
severally, such obligations on a senior subordinated basis pursuant to the
terms of the Indenture.
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5. OPTIONAL REDEMPTION.
(a) The Securities are not redeemable at the Company's option prior
to August 1, 2003. From and after August 1, 2003, the Securities will be
subject to redemption at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below PLUS accrued
and unpaid interest thereon to the applicable redemption date, if redeemed
during the twelve-month period beginning on August 1 of the years indicated
below:
Percentage of
Year Principal Amount
---- ----------------
2003....................................105.125%
2004....................................103.417%
2005....................................101.708%
2006 and thereafter.....................100.000%
(b) Notwithstanding the provisions of clause (a) of this Paragraph 5,
prior to August 1, 2001 the Company may, at its option, on any one or more
occasions, redeem up to 35% of the original aggregate principal amount of
Securities at a redemption price equal to 110.250% of the principal amount
thereof, plus accrued and unpaid interest, if any, thereon to the redemption
date, with the net proceeds of sales of public common stock of the Company;
PROVIDED that at least 65% of the original aggregate principal amount of
Securities must remain outstanding immediately after the occurrence of such
redemption; and PROVIDED, further, that any such redemption shall occur
within 60 days after the date of the closing of the related sale of such
common stock.
(c) Notwithstanding the provisions of clause (a) of this Paragraph 5,
upon the occurrence of a Change of Control at any time on or prior to August 1,
2003, the Company may, at its option, redeem in whole but not in part, the
Securities at a redemption price equal to 100% of the principal amount
thereof, plus the Applicable Premium as of, and accrued but unpaid interest,
if any, to, the date of redemption (subject to the right of Holders of record
on the relevant record date to receive interest due on the relevant interest
payment date) provided that such redemption shall be made no more than 90 days
after the occurrence of a Change of Control. The Company shall notify the
Trustee and, by mail, the Holders of the Securities of its decision to redeem
the Securities pursuant to this Paragraph 5(c) within 30 days of the
occurrence of a Change of Control.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect
to the Securities.
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7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, if the Company does
not redeem the Securities pursuant to paragraph 5(c), each Holder of
Securities shall have the right to require the Company to repurchase all or
any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Securities pursuant to the offer described below (the "Change of Control
Offer") at an offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest, if any, thereon to the date
of purchase (the "Change of Control Payment"). The right of the Holders of
the Securities to require the Company to repurchase such Securities upon a
Change of Control may not be waived by the Trustee without the approval of
the Holders of the Securities required by Section 9.2 of the Indenture.
Within 30 days following any Change of Control, the Company will mail a
notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Securities
pursuant to the procedures required by the Indenture and described in such
notice. The Change of Control Payment shall be made on a business day not
less than 30 days nor more than 60 days after such notice is mailed. The
Company and each Subsidiary Guarantor will comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of the Securities as a result of a Change
of Control.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales permitted by the Indenture, when the aggregate amount of Excess
Proceeds exceeds $15 million, the Company shall make an Asset Sale Offer to
purchase the maximum principal amount of Securities and any other Pari Passu
Indebtedness to which the Asset Sale Offer applies that may be purchased out
of the Excess Proceeds, at an offer price in cash in an amount equal to, in
the case of the Securities, 100% of the principal amount thereof, plus
accrued and unpaid interest thereon to the date of purchase or, in the case
of any Pari Passu Indebtedness, 100% of the principal amount thereof (or with
respect to discount Pari Passu Indebtedness, the accreted value thereof) on
the date of purchase, in each case, in accordance with the procedures set
forth in Section 3.9 of the Indenture or the agreements governing the Pari
Passu Indebtedness, as applicable. To the extent that the aggregate
principal amount (or accreted value, as the case may be) of Securities, and
Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes. If the sum of (i) the aggregate principal amount
of Securities surrendered by Holders thereof and (ii) the aggregate principal
amount or accreted value, as the case may be, of Pari Passu Indebtedness
surrendered by holders or lenders thereof exceeds the amount of Excess
Proceeds, the Trustee and the trustee or other lender representative for the
Pari Passu Indebtedness shall select the Securities and the other Pari Passu
Indebtedness to be purchased on a pro rata basis, based on the aggregate
principal amount (or accreted value, as applicable) thereof surrendered in
such Asset
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Sale Offer. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Securities are to be redeemed at its registered address.
Securities in denominations larger than $1,000 may be redeemed in part but
only in integral multiples of $1,000, unless all of the Securities held by a
Holder are to be redeemed. On and after the redemption date interest ceases
to accrue on the aggregate principal amount of the Securities called for
redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities may be issued
initially in the form of one or more fully registered Global Securities. The
Securities may also be issued in registered form without coupons in minimum
denominations of $1,000 and integral multiples of $1,000. The transfer of
Securities may be registered and Securities may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and
the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Security or portion of a Security selected for redemption,
except for the unredeemed portion of any Security being redeemed in part.
Also, it need not exchange or register the transfer of any Security for a
period of 15 days before a selection of Securities to be redeemed or during
the period between a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Security may
be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal
amount of the Securities then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or the tender offer or
exchange offer for, such Securities), and any existing Default or Event of
Default under, or compliance with any provision of the Indenture or the
Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities. Without the consent of
any Holder of a Security, the Indenture or the Securities may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Securities in addition to or in place of certificated
Securities, to provide for the assumption of the Company's obligations to
Holders of the Securities in case of a merger or consolidation, to make any
change that would provide any additional rights or benefits to the Holders of
the Securities or that does not adversely affect the legal rights under the
Indenture of any such Holder, to add guarantees with respect to the
Securities or to secure the Securities or to comply with the requirements of
the Commission in order to effect
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or maintain the qualification of the Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 consecutive days in the payment when due of interest on the
Securities (whether or not prohibited by the provisions of Article 10 of the
Indenture); (ii) default in payment when due of the principal of or premium,
if any, on the Securities (whether or not prohibited by the provisions of
Article 10 of the Indenture); (iii) failure by the Company or any Subsidiary
Guarantor to comply with the provisions of Article 5 of the Indenture; (iv)
failure by the Company for 30 consecutive days after notice from the Trustee
or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding to comply with the provisions of Sections 4.3,
4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.18 and 4.19 of the
Indenture; (v) failure by the Company for 60 consecutive days after notice
from the Trustee or the Holders of at least 25% in aggregate principal amount
of the Securities then outstanding to comply with any of its other agreements
or covenants in, or provisions of, this Security or in the Indenture; (vi)
except as permitted by the Indenture, any Subsidiary Guarantee shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect or a Subsidiary Guarantor or any
Person acting on behalf of a Subsidiary Guarantor, shall deny or disaffirm
such Subsidiary Guarantor's obligations under its Subsidiary Guarantee; (vii)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any Restricted Subsidiary whether such
Indebtedness or guarantee now exists, or is created after the date of the
Indenture, which default (a) is caused by a failure to pay principal of such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b) results
in the acceleration of such Indebtedness prio to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there is then
existing a Payment Default or the maturity of which has been so accelerated,
aggregates $10 million or more; (viii) a final non-appealable judgment or
order or final non-appealable judgments or orders are rendered against the
Company or any Restricted Subsidiary that remain unpaid or discharged for a
period of 60 days and that require the payment in money, either individually
or in an aggregate amount, that is more than $10 million; and (ix) certain
events of bankruptcy or insolvency with respect to the Company or any
Restricted Subsidiary. If any Event of Default (other than an Event of
Default described in clause (ix) above) occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the then
outstanding Securities may declare all the Securities to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency with respect
to the Company or any Restricted Subsidiary, all outstanding Securities will
become due and payable without further action or notice. Holders of the
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Securities may not enforce the Indenture or the Securities except as provided
in the Indenture. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the then outstanding Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Securities notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the
Securities then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Securities waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default
or Event of Default in the payment of interest or premium on, or the
principal of, the Securities. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the
Company is required, within 5 Business days after becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
13. SUBORDINATION. The Securities are subordinated to Senior Debt
of the Company and the Subsidiary Guarantees are subordinated to Guarantor
Senior Debt of the Subsidiary Guarantors. To the extent provided in the
Indenture, Senior Debt must be paid before the Securities may be paid and
Guarantor Senior Debt of a Subsidiary Guarantor must be paid before a
Subsidiary Guarantor may pay under its Subsidiary Guarantee. The Company
agrees, and each Holder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities, including, but not limited to, the payment of
principal of, premium, if any, and interest on the Securities, and any other
payment Obligation of the Company in respect of the Securities and the
obligations of each Subsidiary Guarantor under its Subsidiary Guarantee are
subordinated in right of payment, to the extent and in the manner provided in
the Indenture, to the prior payment in full in cash of all Senior Debt of the
Company and, in the case of a Subsidiary Guarantee, all Guarantor Senior Debt
of such Subsidiary Guarantor (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed) and authorizes the
Trustee to give effect and appoints the Trustee as attorney-in-fact for such
purpose.
14. TRUSTEE DEALINGS WITH COMPANY. The Indenture contains certain
limitations on the rights of the Trustee, should it become a creditor of the
Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or
otherwise. The Trustee will be permitted to engage in other transactions;
however, if it acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the Commission for permission to continue
or resign.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Securities or the Indenture or
for any claim based on, in
A-11
respect of, or by reason of, such obligations or their creation. Each Holder
of Securities, by accepting a Security, waives and releases all such
liability. The waiver and release are part of the consideration for issuance
of the Securities. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that
such a waiver is against public policy.
16. AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an 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).
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Securities or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Continental Resources, Inc.
302 North Independence, 3rd Floor
P.O. Box 1032
Enid, OK 73702
Telecopier No.: (580) 548-5281
Attention: Roger Clement
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may
substitute another to act for him.
- -------------------------------------------------------------------------------
Date: ______________________ Your Signature: ___________________________
Signature Guarantee:* ______________________________
(Signature must be guaranteed)
- -------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer or exchange of any of the Securities
evidenced by this certificate occurring prior to the date that is two years
after the later of the date of original issuance of such Securities and the
last date, if any, on which such Securities were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Securities are
being:
CHECK ONE BOX BELOW:
1/ /1 acquired for the undersigned's own account, without transfer (in
satisfaction of Section 2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of
the Indenture); or
2/ /2 transferred to the Company; or
3/ /3 transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933; or
4/ /4 transferred pursuant to an effective registration statement under
the Securities Act; or
5/ /5 transferred pursuant to and in compliance with Regulation S under
the Securities Act of 1933, with transferee furnishing to the
Trustee a signed letter containing certain representations and
- ------------------------
*/ Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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agreements (the form of which letter substantially appears in
Section 2.14 of the Indenture); or
6/ /6 transferred to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933), that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of
which letter appears in Section 2.13 of the Indenture); or
7/ /7 transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered holder thereof; PROVIDED, HOWEVER, that if box (5),
(6) or (7) is checked, the Trustee or the Company may require, prior to
registering any such transfer of the Securities, in their sole discretion,
such legal opinions, certifications and other information as the Trustee or
the Company may reasonably request to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
---------------------------------------
Signature
Signature Guarantee:(*)
- --------------------------------- ---------------------------------------
(Signature must be guaranteed) Signature
- ------------------------------------------------------------------------------
- ----------------------
*/ Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.10 or 4.13 of the Indenture, check the box below:
/ /8 Section 4.10 / /9 Section 4.13
If you want to elect to have only part of the Security purchased by
the Company pursuant to Section 4.10 or Section 4.13 of the Indenture, state
the principal amount you elect to have purchased: $______________
Date: Your Signature:
-------- -------------------------------------------------
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee:(*)
-----------------------------------------
- --------------------
*/ Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Amount of decrease in Amount of increase in Principal Amount of Signature of
Date of Principal Amount of Principal Amount of this Global Security authorized officer of
Exchange this Global Security this Global Security following such Trustee or Note
decrease or increase Custodian
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EXHIBIT B
(Form of Face of Exchange Security)
SERIES B NOTE
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL Security SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY IS SUBORDINATED TO SENIOR DEBT, AS DEFINED IN THE
INDENTURE (AS DEFINED HEREIN), AND THE OBLIGATIONS OF EACH SUBSIDIARY
GUARANTOR UNDER THE SUBSIDIARY GUARANTEE CONTAINED IN THE INDENTURE ARE
SUBORDINATED TO GUARANTOR SENIOR INDEBTEDNESS, AS DEFINED IN THE INDENTURE,
OF SUCH SUBSIDIARY GUARANTOR.
B-1
CONTINENTAL RESOURCES, INC.
10 1/4% Senior Subordinated Notes due 2008
No. 1 $150,000,000
CUSIP Number: _____________
Continental Resources, Inc., an Oklahoma corporation, promises to pay
to Cede & Co., or registered assigns, the principal sum of One Hundred Fifty
Million Dollars on August 1, 2008.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Additional provisions of this Security are set forth on the other
side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and a
facsimile of its corporate seal to be affixed hereto and imprinted hereon.
Dated: ________, 1998
CONTINENTAL RESOURCES, INC.
By
-------------------------------------
Name:
Title:
By
-------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee, certifies that this is
one of the Securities referred to in the
within-mentioned Indenture:
By
----------------------------------
Authorized Signatory
Dated: , 1998
------------
B-2
(Back of Note)
10 1/4% Senior Subordinated Notes due 2008
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Continental Resources, Inc., an Oklahoma
corporation (the "COMPANY"), promises to pay interest on the principal amount
of this Security at the rate of 10 1/4% per annum, which interest shall be
payable in cash semiannually in arrears on each February 1 and August 1, or
if any such day is not a Business Day, on the next succeeding Business Day
(each an "INTEREST PAYMENT DATE"); PROVIDED that the first Interest Payment
Date shall be February 1, 1999. Interest on the Securities will accrue from
the most recent date to which interest has been paid or, if no interest has
been paid, from the date of original issuance. Interest will be computed on
the basis of a 360-day year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. On each Interest Payment Date the Company
will pay interest to the Person who is the Holder of record of this Security
as of the close of business on the January 15 or July 15 immediately
preceding such Interest Payment Date, even if this Security is cancelled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
Principal, premium, if any, and interest on this Security will be payable at
the office or agency of the Company maintained for such purpose within The
City and State of New York or, in the event the Securities do not remain in
book-entry form, at the option of the Company, payment of interest may be
made by check mailed to the Holder of this Security at its address set forth
in the register of Holders of Securities; PROVIDED that all payments with
respect to the Global Securities and Definitive Securities having an
aggregate principal amount of $5.0 million or more the Holders of which have
given wire transfer instructions to the Company at least 10 Business Days
prior to the applicable payment date will be required to be made by wire
transfer of immediately available funds to the accounts specified by the
Holders thereof. Such payment shall be 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.
3. PAYING AGENT AND REGISTRAR. Initially, United States Trust
Company of New York, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any Subsidiary Guarantor or any
other of the Company's Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Securities under an
Indenture dated as of July 24, 1998 ("INDENTURE") among the Company, the
Subsidiary Guarantors and the Trustee. The
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terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb). The Securities are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Securities are general unsecured obligations of
the Company equal in an aggregate principal amount to $150,000,000 and will
mature on August 1, 2008.
The Securities are general unsecured senior subordinated
obligations of the Company limited to $150,000,000 million aggregate
principal amount (subject to Section 2.7 of the Indenture). The aggregate
principal amount of notes which may be authenticated and delivered under the
Indenture, including the Securities, is limited to $300.0 million (subject to
Section 2.7 of the Indenture). This Security is one of the Exchange
Securities referred to in the Indenture. The Securities include the Initial
Securities and any Exchange Securities issued in exchange for the Initial
Securities pursuant to the Indenture and the Registration Rights Agreement.
The Initial Securities and the Exchange Securities are treated as a single
class of securities under the Indenture. The Indenture imposes certain
limitations on the incurrence of Indebtedness by the Company and its
Restricted Subsidiaries, the payment of dividends and other distributions on
the Capital Stock of the Company and its Restricted Subsidiaries, the
purchase or redemption of Capital Stock of the Company and Capital Stock of
such Restricted Subsidiaries, certain purchases or redemptions of
Subordinated Indebtedness, the sale or transfer of assets and Capital Stock
of Restricted Subsidiaries, the issuance or sale of Capital Stock of
Restricted Subsidiaries, the Investments of the Company and its Subsidiaries
and transactions with Affiliates. In addition, the Indenture limits the
ability of the Company and its Restricted Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
To guarantee the due and punctual payment of the principal,
premium, if any, and interest on the Securities and all other amounts payable
by the Company under the Indenture and the Securities when and as the same
shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Securities and the Indenture, the Subsidiary
Guarantors have unconditionally guaranteed (and future Subsidiary Guarantors,
together with the Subsidiary Guarantors, will unconditionally guarantee),
jointly and severally, such obligations on a senior subordinated basis
pursuant to the terms of the Indenture.
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5. OPTIONAL REDEMPTION.
(a) The Securities are not redeemable at the Company's option
prior to August 1, 2003. From and after August 1, 2003, the Securities will
be subject to redemption at the option of the Company, in whole or in part,
upon not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below PLUS accrued
and unpaid interest thereon to the applicable redemption date, if redeemed
during the twelve-month period beginning on August 1 of the years indicated
below:
PERCENTAGE OF
YEAR PRINCIPAL AMOUNT
---- ----------------
2003..........................................105.125%
2004..........................................103.417%
2005..........................................101.708%
2006 and thereafter...........................100.000%
(b) Notwithstanding the provisions of clause (a) of this Paragraph
5, prior to August 1, 2001 the Company may, at its option, on any one or more
occasions, redeem up to 35% of the original aggregate principal amount of
Securities at a redemption price equal to 110.250% of the principal amount
thereof, plus accrued and unpaid interest, if any, thereon to the redemption
date, with the net proceeds of sales of public common stock of the Company;
PROVIDED that at least 65% of the original aggregate principal amount of
Securities must remain outstanding immediately after the occurrence of such
redemption; and PROVIDED, further, that any such redemption shall occur
within 60 days after the date of the closing of the related sale of such
common stock.
(c) Notwithstanding the provisions of clause (a) of this Paragraph
5, upon the occurrence of a Change of Control at any time on or prior to
August 1, 2003, the Company may, at its option, redeem in whole but not in
part, the Securities at a redemption price equal to 100% of the principal
amount thereof, plus the Applicable Premium as of, and accrued but unpaid
interest, if any, to, the date of redemption (subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date) provided that such redemption shall be made no more
than 90 days after the occurrence of a Change of Control. The Company shall
notify the Trustee and, by mail, the Holders of the Securities of its
decision to redeem the Securities pursuant to this Paragraph 5(c) within 30
days of the occurrence of a Change of Control.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect
to the Securities.
B-5
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, if the Company
does not redeem the Securities pursuant to paragraph 5(c), each Holder of
Securities shall have the right to require the Company to repurchase all or
any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Securities pursuant to the offer described below (the "Change of Control
Offer") at an offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest, if any, thereon to the date
of purchase (the "Change of Control Payment"). The right of the Holders of
the Securities to require the Company to repurchase such Securities upon a
Change of Control may not be waived by the Trustee without the approval of
the Holders of the Securities required by Section 9.2 of the Indenture.
Within 30 days following any Change of Control, the Company will mail a
notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Securities
pursuant to the procedures required by the Indenture and described in such
notice. The Change of Control Payment shall be made on a business day not
less than 30 days nor more than 60 days after such notice is mailed. The
Company and each Subsidiary Guarantor will comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of the Securities as a result of a Change
of Control.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales permitted by the Indenture, when the aggregate amount of Excess
Proceeds exceeds $15 million, the Company shall make an Asset Sale Offer to
purchase the maximum principal amount of Securities and any other Pari Passu
Indebtedness to which the Asset Sale Offer applies that may be purchased out
of the Excess Proceeds, at an offer price in cash in an amount equal to, in
the case of the Securities, 100% of the principal amount thereof, plus
accrued and unpaid interest thereon to the date of purchase or, in the case
of any Pari Passu Indebtedness, 100% of the principal amount thereof (or with
respect to discount Pari Passu Indebtedness, the accreted value thereof) on
the date of purchase, in each case, in accordance with the procedures set
forth in Section 3.9 of the Indenture or the agreements governing the Pari
Passu Indebtedness, as applicable. To the extent that the aggregate
principal amount (or accreted value, as the case may be) of Securities, and
Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes. If the sum of (i) the aggregate principal amount
of Securities surrendered by Holders thereof and (ii) the aggregate principal
amount or accreted value, as the case may be, of Pari Passu Indebtedness
surrendered by holders or lenders thereof exceeds the amount of Excess
Proceeds, the Trustee and the trustee or other lender representative for the
Pari Passu Indebtedness shall select the Securities and the other Pari Passu
Indebtedness to be purchased on a pro rata basis, based on the aggregate
principal amount (or accreted value, as applicable) thereof surrendered in
such Asset
B-6
Sale Offer. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Securities are to be redeemed at its registered address.
Securities in denominations larger than $1,000 may be redeemed in part but
only in integral multiples of $1,000, unless all of the Securities held by a
Holder are to be redeemed. On and after the redemption date interest ceases
to accrue on the aggregate principal amount of the Securities called for
redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities may be
issued initially in the form of one or more fully registered Global
Securities. The Securities may also be issued in registered form without
coupons in minimum denominations of $1,000 and integral multiples of $1,000.
The transfer of Securities may be registered and Securities may be exchanged
as provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Company need not exchange
or register the transfer of any Security or portion of a Security selected
for redemption, except for the unredeemed portion of any Security being
redeemed in part. Also, it need not exchange or register the transfer of any
Security for a period of 15 days before a selection of Securities to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Security
may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal
amount of the Securities then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or the tender offer or
exchange offer for, such Securities), and any existing Default or Event of
Default under, or compliance with any provision of the Indenture or the
Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities. Without the consent of
any Holder of a Security, the Indenture or the Securities may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Securities in addition to or in place of certificated
Securities, to provide for the assumption of the Company's obligations to
Holders of the Securities in case of a merger or consolidation, to make any
change that would provide any additional rights or benefits to the Holders of
the Securities or that does not adversely affect the legal rights under the
Indenture of any such Holder, to add guarantees with respect to the
Securities or to secure the Securities or to comply with the requirements of
the Commission in order to effect
B-7
or maintain the qualification of the Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 consecutive days in the payment when due of interest on the
Securities (whether or not prohibited by the provisions of Article 10 of the
Indenture); (ii) default in payment when due of the principal of or premium,
if any, on the Securities (whether or not prohibited by the provisions of
Article 10 of the Indenture); (iii) failure by the Company or any Subsidiary
Guarantor to comply with the provisions of Article 5 of the Indenture; (iv)
failure by the Company for 30 consecutive days after notice from the Trustee
or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding to comply with the provisions of Sections 4.3,
4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.18 and 4.19 of the
Indenture; (v) failure by the Company for 60 consecutive days after notice
from the Trustee or the Holders of at least 25% in aggregate principal amount
of the Securities then outstanding to comply with any of its other agreements
or covenants in, or provisions of, this Security or in the Indenture; (vi)
except as permitted by the Indenture, any Subsidiary Guarantee shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect or a Subsidiary Guarantor or any
Person acting on behalf of a Subsidiary Guarantor, shall deny or disaffirm
such Subsidiary Guarantor's obligations under its Subsidiary Guarantee; (vii)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any Restricted Subsidiary whether such
Indebtedness or guarantee now exists, or is created after the date of the
Indenture, which default (a) is caused by a failure to pay principal of such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b) results
in the acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there is then
existing a Payment Default or the maturity of which has been so accelerated,
aggregates $10 million or more; (viii) a final non-appealable judgment or
order or final non-appealable judgments or orders are rendered against the
Company or any Restricted Subsidiary that remain unpaid or discharged for a
period of 60 days and that require the payment in money, either individually
or in an aggregate amount, that is more than $10 million; and (ix) certain
events of bankruptcy or insolvency with respect to the Company or any
Restricted Subsidiary. If any Event of Default (other than an Event of
Default described in clause (ix) above) occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding
Securities may declare all the Securities to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency with respect to the Company
or any Restricted Subsidiary, all outstanding Securities will become due and
payable without further action or notice. Holders of the Securities may not
B-8
enforce the Indenture or the Securities except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the then outstanding Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Securities notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest. The Holders
of a majority in aggregate principal amount of the Securities then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the Securities waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest or premium on, or the principal of, the
Securities. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is
required, within 5 Business days after becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such Default or
Event of Default.
13. SUBORDINATION. The Securities are subordinated to Senior Debt
of the Company and the Subsidiary Guarantees are subordinated to Guarantor
Senior Debt of the Subsidiary Guarantors. To the extent provided in the
Indenture, Senior Debt must be paid before the Securities may be paid and
Guarantor Senior Debt of a Subsidiary Guarantor must be paid before a
Subsidiary Guarantor may pay under its Subsidiary Guarantee. The Company
agrees, and each Holder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities, including, but not limited to, the payment of
principal of, premium, if any, and interest on the Securities, and any other
payment Obligation of the Company in respect of the Securities and the
obligations of each Subsidiary Guarantor under its Subsidiary Guarantee are
subordinated in right of payment, to the extent and in the manner provided in
the Indenture, to the prior payment in full in cash of all Senior Debt of the
Company and, in the case of a Subsidiary Guarantor, all Guarantor Senior Debt
of such Subsidiary Guarantor (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed) and authorizes the
Trustee to give effect and appoints the Trustee as attorney-in-fact for such
purpose.
14. TRUSTEE DEALINGS WITH COMPANY. The Indenture contains certain
limitations on the rights of the Trustee, should it become a creditor of the
Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or
otherwise. The Trustee will be permitted to engage in other transactions;
however, if it acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the Commission for permission to continue
or resign.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Securities or the Indenture or
for any claim based on, in
B-9
respect of, or by reason of, such obligations or their creation. Each Holder
of Securities, by accepting a Security, waives and releases all such
liability. The waiver and release are part of the consideration for issuance
of the Securities. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that
such a waiver is against public policy.
16. AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an 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).
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Securities or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Continental Resources, Inc.
302 North Independence, 3rd Floor
P.O. Box 1032
Enid, OK 73702
Telecopier No.: (580) 548-5281
Attention: Roger Clement
B-10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may
substitute another to act for him.
- ------------------------------------------------------------------------------
Date: Your Signature:
----------------------- -----------------------------
Signature Guarantee:(*)
----------------------------------------
(Signature must be guaranteed)
- ------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer or exchange of any of the Securities
evidenced by this certificate occurring prior to the date that is two years
after the later of the date of original issuance of such Securities and the
last date, if any, on which such Securities were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Securities are
being:
CHECK ONE BOX BELOW:
1/ /10 acquired for the undersigned's own account, without transfer (in
satisfaction of Section 2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of
the Indenture); or
2/ /11 transferred to the Company; or
3/ /12 transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933; or
4/ /13 transferred pursuant to an effective registration statement under
the Securities Act; or
5/ /14 transferred pursuant to and in compliance with Regulation S under
the Securities Act of 1933, with transferee furnishing to the
Trustee a signed
- --------------------
(*)/ Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
B-11
letter containing certain representations and agreements (the
form of which letter substantially appears in Section 2.14 of the
Indenture); or
6/ /15 transferred to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933), that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of
which letter appears in Section 2.13 of the Indenture); or
7/ /16 transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any Person
other than the registered holder thereof; PROVIDED, HOWEVER, that if box (5),
(6) or (7) is checked, the Trustee or the Company may require, prior to
registering any such transfer of the Securities, in their sole discretion,
such legal opinions, certifications and other information as the Trustee or
the Company may reasonably request to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
---------------------------------------
Signature
Signature Guarantee:(*)
- -------------------------------- ---------------------------------------
(Signature must be guaranteed) Signature
- ------------------------------------------------------------------------------
- ---------------
(*)/ Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
B-12
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Amount of decrease in Amount of increase in Principal Amount of Signature of
Date of Principal Amount of Principal Amount of this Global Security authorized officer of
Exchange this Global Security this Global Security following such Trustee or Note
decrease or increase Custodian
B-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.10 or 4.13 of the Indenture, check the box below:
/ /17 Section 4.10 / /18 Section 4.13
If you want to elect to have only part of the Security purchased by
the Company pursuant to Section 4.10 or Section 4.13 of the Indenture, state
the principal amount you elect to have purchased: $______________
Date: Your Signature:
-------------------- ---------------------------
(Sign exactly as your name
appears on the face of this
Security)
Signature Guarantee:(*)
-------------------
________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
B-14
EXHIBIT C
FORM OF SUBSIDIARY GUARANTEE
This Supplemental Indenture, dated as of [__________] (this
"Supplemental Indenture" or "Guarantee"), among [name of future Subsidiary
Guarantor] (the "Guarantor"), Continental Resources, Inc. (together with its
successors and assigns, the "Company"), each other then existing Subsidiary
Guarantor under the Indenture referred to below, and United States Trust
Company of New York as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an Indenture, dated as of July 24, 1998 (as amended, supplemented,
waived or otherwise modified, the "INDENTURE"), providing for the issuance of
an aggregate principal amount of $150.0 million of 10 1/4% Senior Subordinated
Notes due 2008 of the Company (the "Securities";
WHEREAS, Section 4.14 of the Indenture provides that the Company is
required to cause each Restricted Subsidiary acquired or created by the
Company or any Restricted Subsidiary to execute and deliver to the Trustee a
Subsidiary Guarantee pursuant to which such Subsidiary Guarantor will
unconditionally guarantee, jointly and severally with the other Subsidiary
Guarantors, the full and prompt payment of the Securities pursuant to Article
11 of the Indenture subject to the subordination provisions of Article 10 of
the Indenture; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee and
the Company are authorized to execute and deliver this Supplemental Indenture
to amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guarantor, the Company, the other Subsidiary Guarantors and the Trustee
mutually covenant and agree for the equal and ratable benefit of the holders
of the Securities as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINED TERMS. As used in this Subsidiary Guarantee,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders" in this Guarantee
shall refer to the term "Holders" as defined in the Indenture and the Trustee
acting on behalf or for the benefit of such holders. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture
C-1
as a whole and not to any particular section hereof.
ARTICLE 2
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1 AGREEMENT TO BE BOUND. The Guarantor hereby becomes a
party to the Indenture as a Subsidiary Guarantor and as such will have all of
the rights and be subject to all of the obligations and agreements of a
Subsidiary Guarantor under the Indenture. The Guarantor agrees to be bound
by all of the provisions of the Indenture applicable to a Subsidiary
Guarantor and to perform all of the obligations and agreements of a
Subsidiary Guarantor under the Indenture.
SECTION 2.2 GUARANTEE. (a) The Guarantor hereby jointly and
severally, unconditionally guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
the Indenture, the Securities or the obligations of the Company thereunder,
that: (a) the principal of and premium and interest, on the Securities shall
be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and
interest on premium and interest, on the Securities, if any, if lawful, and
all other obligations of the Company to the Holders or the Trustee thereunder
shall be promptly paid in full or performed, all in accordance with the terms
thereof; and (b) in case of any extension of time of payment or renewal of
any Securities or any of such other obligations, that the same shall be
promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise in accordance with the provisions of Article 11 of the Indenture.
(b) The Guarantor agrees that the Indebtedness evidenced by its
Subsidiary Guarantee shall be subordinated in right of payment, to the extent
and in the manner provided in Article 10 of the Indenture, to the prior
payment when due in cash or Cash Equivalents of all Guarantor Senior Debt of
the Guarantor and that the subordination is for the benefit of and
enforceable by the holders of Guarantor Senior Debt of the Guarantor.
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 NOTICES. All notices and other communications to the
Guarantor shall be given as provided in the Indenture to the Guarantor, at
its address set forth below, with a copy to the Company as provided in the
Indenture for notices to the Company.
SECTION 3.2 PARTIES. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee and the
C-2
holders of any Guarantor Senior Indebtedness, any legal or equitable right,
remedy or claim under or in respect of this Supplemental Indenture or the
Indenture or any provision herein or therein contained.
SECTION 3.3 GOVERNING LAW. This Supplemental Indenture shall be
governed by the laws of the State of New York.
SECTION 3.4 SEVERABILITY CLAUSE. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby and such provision shall be
ineffective only to the extent of such invalidity, illegality or
unenforceability.
SECTION 3.5 RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES
PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in
all respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every
holder of Securities heretofore or hereafter authenticated and delivered
shall be bound hereby. The Trustee makes no representation or warranty as to
the validity or sufficiency of this Supplemental Indenture.
SECTION 3.6 COUNTERPARTS. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.7 HEADINGS. The headings of the Articles and the
sections in this Guarantee are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NAME OF GUARANTOR],
as a Subsidiary Guarantor
By:
------------------------------------
Name:
Title:
C-3
CONTINENTAL RESOURCES, INC.
By:
------------------------------------
Name:
Title:
CONTINENTAL GAS
as a Subsidiary Guarantor
By:
------------------------------------
Name:
Title:
CONTINENTAL CRUDE CO.
as a Subsidiary Guarantor
By:
------------------------------------
Name:
Title:
[Add signature block for any other
existing Subsidiary Guarantors]
UNITED STATES TRUST COMPANY OF NEW YORK
By:
------------------------------------
Name:
Title:
C-4
EXECUTION COPY
- --------------------------------------------------------------------------------
CONTINENTAL RESOURCES, INC.
As Issuer
CONTINENTAL GAS, INC.
CONTINENTAL CRUDE CO.
As Subsidiary Guarantors
10 1/4% SENIOR SUBORDINATED NOTES DUE 2008
-------------------
INDENTURE
Dated as of July 24, 1998
-------------------
UNITED STATES TRUST COMPANY OF NEW YORK
As Trustee
-------------------
- --------------------------------------------------------------------------------
C-5
CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
- --------------- ---------
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3
313 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6; 12.2
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3; 12.2
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3-10.5
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5
(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5; 12.2
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . 2.9
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.12
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
318 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.1
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.1
_____________
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE. . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Other Definitions . . . . . . . . . . . . . . . . . . . 23
Section 1.3. Incorporation By Reference of Trust Indenture Act . . . 24
Section 1.4. Rules of Construction . . . . . . . . . . . . . . . . . 25
ARTICLE 2
THE SECURITIES. . . . . . . . . . . . . . . . 26
Section 2.1. Form, Dating and Terms. . . . . . . . . . . . . . . . . 26
Section 2.2. Execution and Authentication. . . . . . . . . . . . . . 32
Section 2.3. Registrar and Paying Agent. . . . . . . . . . . . . . . 33
Section 2.4. Paying Agent to Hold Money in Trust . . . . . . . . . . 34
Section 2.5. Holder Lists. . . . . . . . . . . . . . . . . . . . . . 34
Section 2.6. Transfer and Exchange . . . . . . . . . . . . . . . . . 35
Section 2.7. Replacement Securities. . . . . . . . . . . . . . . . . 38
Section 2.8. Outstanding Securities. . . . . . . . . . . . . . . . . 39
Section 2.9. Temporary Securities. . . . . . . . . . . . . . . . . . 39
Section 2.10. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . 39
Section 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . 40
Section 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . 40
SECTION 2.13. Form of Certificate to be Delivered in Connection
with Transfers to Institutional Accredited Investors. . 41
SECTION 2.14. Form of Certificate to be Delivered in Connection
with Transfers Pursuant to Regulations. . . . . . . . . 42
SECTION 2.15. Computation of Interest . . . . . . . . . . . . . . . . 43
ARTICLE 3
REDEMPTION AND PREPAYMENT . . . . . . . . . . . . . . 44
Section 3.1. Notices to Trustee. . . . . . . . . . . . . . . . . . . . 44
Section 3.2. Selection of Securities to Be Redeemed. . . . . . . . . . 44
Section 3.3. Notice of Redemption. . . . . . . . . . . . . . . . . . . 45
Section 3.4. Effect of Notice of Redemption. . . . . . . . . . . . . . 46
Section 3.5. Deposit of Redemption Price . . . . . . . . . . . . . . . 46
Section 3.6. Securities Redeemed in Part . . . . . . . . . . . . . . . 46
Section 3.7. Optional Redemption . . . . . . . . . . . . . . . . . . . 46
Section 3.8. Mandatory Redemption. . . . . . . . . . . . . . . . . . . 48
Section 3.9. Offer to Purchase By Application of Excess Proceeds . . . 48
ARTICLE 4
COVENANTS . . . . . . . . . . . . . . . . . . 50
Section 4.1. Payment of Securities. . . . . . . . . . . . . . . . . . . 50
Section 4.2. Maintenance of Office or Agency. . . . . . . . . . . . . . 51
Section 4.3. Commission Reports . . . . . . . . . . . . . . . . . . . . 51
Section 4.4. Compliance Certificate . . . . . . . . . . . . . . . . . . 52
Section 4.5. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 4.6. Stay, Extension and Usury Laws . . . . . . . . . . . . . . 53
Section 4.7. Restricted Payments. . . . . . . . . . . . . . . . . . . . 53
Section 4.8. Dividend and Other Payment Restrictions Affecting
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Restricted Subsidiaries. . . . . . . . . . . . . . . . . . 56
Section 4.9. Incurrence of Indebtedness and Issuance of
Disqualified Stock . . . . . . . . . . . . . . . . . . . . 57
Section 4.10. Asset Sales. . . . . . . . . . . . . . . . . . . . . . . . 59
Section 4.11. Transactions with Affiliates . . . . . . . . . . . . . . . 61
Section 4.12. Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 4.13. Offer to Repurchase Upon Change of Control . . . . . . . . 62
Section 4.14. Additional Subsidiary Guarantees . . . . . . . . . . . . . 64
Section 4.15. Corporate Existence. . . . . . . . . . . . . . . . . . . . 64
Section 4.16. No Layering. . . . . . . . . . . . . . . . . . . . . . . . 64
Section 4.17. Business Activities. . . . . . . . . . . . . . . . . . . . 65
Section 4.18. Sale and Leaseback Transactions . . . . . . . . . . . . . 65
Section 4.19. Designation of Unrestricted Subsidiaries . . . . . . . . . 65
ARTICLE 5
SUCCESSORS. . . . . . . . . . . . . . . . . . 66
Section 5.1. Merger, Consolidation, or Sale of Substantially All
Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 5.2. Successor Corporation Substituted; Subsidiary
Guarantors Confirmed . . . . . . . . . . . . . . . . . . . 67
ARTICLE 6
DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . 67
Section 6.1. Events of Default. . . . . . . . . . . . . . . . . . . . . 67
Section 6.2. Acceleration . . . . . . . . . . . . . . . . . . . . . . . 70
Section 6.3. Other Remedies . . . . . . . . . . . . . . . . . . . . . . 70
Section 6.4. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . 71
Section 6.5. Control by Majority. . . . . . . . . . . . . . . . . . . . 71
Section 6.6. Limitation on Suits. . . . . . . . . . . . . . . . . . . . 71
Section 6.7. Rights of Holders of Securities to Receive Payment . . . . 72
Section 6.8. Collection Suit by Trustee . . . . . . . . . . . . . . . . 72
Section 6.9. Trustee May File Proofs of Claim . . . . . . . . . . . . . 72
Section 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . . 74
Section 6.12. Restoration of Rights and Remedies . . . . . . . . . . . . 74
ARTICLE 7
TRUSTEE. . . . . . . . . . . . . . . . . . . 74
Section 7.1. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . 74
Section 7.2. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . 76
Section 7.3. Individual Rights of Trustee . . . . . . . . . . . . . . . 77
Section 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . 77
Section 7.5. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 77
Section 7.6. Reports by Trustee to Holders of the Securities. . . . . . 78
Section 7.7. Compensation and Indemnity . . . . . . . . . . . . . . . . 78
Section 7.8. Replacement of Trustee . . . . . . . . . . . . . . . . . . 79
Section 7.9. Successor Trustee by Merger, etc . . . . . . . . . . . . . 80
Section 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . . 81
Section 7.11. Preferential Collection of Claims Against Company. . . . . 81
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . 81
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance. . 81
Section 8.2. Legal Defeasance and Discharge. . . . . . . . . . . . . . . 81
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Section 8.3. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 82
Section 8.4. Conditions to Legal or Covenant Defeasance. . . . . . . . . 83
Section 8.5. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions . . . . . . . . . . . 84
Section 8.6. Repayment to Company. . . . . . . . . . . . . . . . . . . . 85
Section 8.7. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . 85
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER. . . . . . . . . . . . . . 86
Section 9.1. Without Consent of Holders of Securities. . . . . . . . . . 86
Section 9.2. With Consent of Holders of Securities . . . . . . . . . . . 87
Section 9.3. Compliance with Trust Indenture Act . . . . . . . . . . . . 89
Section 9.4. Revocation and Effect of Consents . . . . . . . . . . . . . 89
Section 9.5. Notation on or Exchange of Securities . . . . . . . . . . . 89
Section 9.6. Trustee to Sign Amendment, etc. . . . . . . . . . . . . . . 89
ARTICLE 10
SUBORDINATION. . . . . . . . . . . . . . . . . . 90
Section 10.1. Agreement to Subordinate. . . . . . . . . . . . . . . . . . 90
Section 10.2. Certain Definitions . . . . . . . . . . . . . . . . . . . . 90
Section 10.3. Liquidation; Dissolution; Bankruptcy. . . . . . . . . . . . 91
Section 10.4. Default on Designated Senior Debt . . . . . . . . . . . . . 94
Section 10.5. Acceleration of Securities. . . . . . . . . . . . . . . . . 95
Section 10.6. When Distribution Must Be Paid Over . . . . . . . . . . . . 95
Section 10.7. Notice by Company . . . . . . . . . . . . . . . . . . . . . 96
Section 10.8. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 10.9. Relative Rights . . . . . . . . . . . . . . . . . . . . . . 96
Section 10.10. Subordination May Not Be Impaired by Company or the
Subsidiary Guarantors . . . . . . . . . . . . . . . . . . . 97
Section 10.11. Payment, Distribution or Notice to Representative . . . . . 97
Section 10.12. Rights of Trustee and Paying Agent. . . . . . . . . . . . . 98
Section 10.13. Authorization to Effect Subordination . . . . . . . . . . . 98
Section 10.14. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 10.15. No Waiver of Subordination Provisions . . . . . . . . . . . 99
ARTICLE 11
THE SUBSIDIARY GUARANTEES. . . . . . . . . . . . . . . 99
Section 11.1. The Subsidiary Guarantees . . . . . . . . . . . . . . . . . 99
Section 11.2. Subordination of Subsidiary Guarantees. . . . . . . . . . . 101
Section 11.3. Subsidiary Guarantors May Consolidate, etc., on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 11.4. Releases of Subsidiary Guarantees . . . . . . . . . . . . . 102
Section 11.5. Limitation on Subsidiary Guarantor Liability. . . . . . . . 103
Section 11.6. "Trustee" to Include Paying Agent . . . . . . . . . . . . . 103
ARTICLE 12
MISCELLANEOUS. . . . . . . . . . . . . . . . . . 104
Section 12.1. Trust Indenture Act Controls. . . . . . . . . . . . . . . . 104
Section 12.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 12.3. Communication by Holders of Securities with Other Holders
of Securities. . . . . . . . . . . . . . . . . . . . . . . 105
Section 12.4. Certificate and Opinion as to Conditions Precedent. . . . . 105
Section 12.5. Statements Required in Certificate or Opinion . . . . . . . 106
Section 12.6. Rules by Trustee and Agents . . . . . . . . . . . . . . . . 106
Section 12.7. No Personal Liability of Directors, Officers,
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Employees and Stockholders. . . . . . . . . . . . . . . . . 106
Section 12.8. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 107
Section 12.9. No Adverse Interpretation of Other Agreements . . . . . . . 107
Section 12.10. Successors. . . . . . . . . . . . . . . . . . . . . . . . . 107
Section 12.11. Severability. . . . . . . . . . . . . . . . . . . . . . . . 107
Section 12.12. Counterpart Originals . . . . . . . . . . . . . . . . . . . 107
Section 12.13. Table of Contents, Headings, Etc. . . . . . . . . . . . . . 107
EXHIBITS
Exhibit A FORM OF INITIAL SECURITY
Exhibit B FORM OF EXCHANGE SECURITY
EXHIBIT C FORM OF SUBSIDIARY GUARANTEE
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